United States v. Travon Jackson ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 13 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10156
Plaintiff-Appellee, D.C. No.
4:16-cr-01704-RM-LAB-1
v.
TRAVON JARVEL JACKSON, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Rosemary Marquez, District Judge, Presiding
Submitted March 3, 2020**
Phoenix, Arizona
Before: HAWKINS, OWENS, and BENNETT, Circuit Judges.
Travon Jarvel Jackson appeals his jury conviction for one count of sex
trafficking by force, fraud, or coercion, in violation of 18 U.S.C. § 1591(a)(1),
(a)(2), and (b)(1); and one count of interstate transportation for prostitution, in
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
violation of 18 U.S.C. § 2421(a). As the parties are familiar with the facts, we do
not recount them here. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
1. The district court did not abuse its discretion in excluding evidence of
the victim’s (V.C.) other acts of prostitution. Federal Rule of Evidence 412
generally prohibits the admission of “evidence offered to prove that a victim
engaged in other sexual behavior” in civil or criminal proceedings involving
alleged sexual misconduct, including in sex trafficking cases. See United States v.
Haines, 918 F.3d 694, 697 (9th Cir. 2019). Jackson argues that one of the
exceptions to Rule 412 applies because the exclusion of V.C.’s other acts of
prostitution violated his Sixth Amendment confrontation rights. See Fed. R. Evid.
412(b)(1)(C). We disagree.
Evidence of other acts of prostitution is irrelevant to whether Jackson used
force, fraud, or coercion to cause V.C. to engage in commercial sex acts. 18
U.S.C. § 1591(a); Haines, 918 F.3d at 697–98. Additionally, the district court
acted within its discretion in excluding under Federal Rules of Evidence 403 and
412 evidence of V.C.’s lie to an investigating officer about her prior prostitution
activities. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) (discussing a trial
judge’s “wide latitude” in “impos[ing] reasonable limits on . . . cross-
examination”). Finally, the district court did not abuse its discretion in ruling that
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the government had not opened the door to V.C.’s other acts of prostitution
because the evidence was not necessary to “rebut any false impression.” United
States v. Sine, 493 F.3d 1021, 1037 (9th Cir. 2007) (emphasis omitted). The
district court acted within its discretion in concluding that even if the government
opened the door, evidence of V.C.’s other prostitution activities would be more
prejudicial than probative and should be excluded under Rule 412. See S.M. v.
J.K., 262 F.3d 914, 920 (9th Cir. 2001), amended by 315 F.3d 1058 (9th Cir.
2003).
2. The prosecutor did not engage in misconduct and deny Jackson a fair
trial. The prosecutor did not impermissibly vouch when she stated that the law
enforcement officers in the case “have experience interviewing people, judging
their credibility, [and] making sure things match up.” See United States v.
Weatherspoon, 410 F.3d 1142, 1146 (9th Cir. 2005) (discussing when a prosecutor
impermissibly vouches). The statements were supported by law enforcement
officers’ testimony at trial and were responsive to defense counsel’s argument that
the officers took what V.C. said as “golden” and failed to obtain corroborating
evidence.
Jackson also argues that the prosecutor impermissibly referenced that there
was scant evidence of V.C.’s untruthfulness after successfully excluding V.C.’s lie
to law enforcement. Assuming without deciding the prosecutor’s argument was
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improper, it was an invited response to the defense’s inaccurate argument that
“there were several things that just weren’t true” in V.C.’s interview with law
enforcement. See United States v. Nobari, 574 F.3d 1065, 1078–79 (9th Cir.
2009).
Further, Jackson’s argument that the government committed prosecutorial
misconduct by misstating the law on venue is without merit. See United States v.
Flores, 802 F.3d 1028, 1034 (9th Cir. 2015) (holding that misstating the law to the
jury is prosecutorial misconduct). The government correctly stated the law when
the prosecutor argued that the jury only needed to find Jackson harbored or
transported V.C. for prostitution at “some point” between the dates given. See
Model Crim. Jury Instr. 9th Cir. 3.20 (2010)1; see also United States v. Loya, 807
F.2d 1483, 1493–94 (9th Cir. 1987).
3. The district court did not plainly err by failing to give a venue
instruction sua sponte. Jackson never contested venue before the district court, nor
did he request a specific venue instruction. Venue was proper in Arizona because
all the “essential conduct element[s]” occurred there. United States v. Sullivan,
797 F.3d 623, 631 (9th Cir. 2015) (internal quotation marks and citation omitted);
1
At the time of the trial, the Ninth Circuit “on or about” instruction was numbered
as 3.20, but since then, the committee renumbered this instruction to 3.18. See
Manual of Model Criminal Jury Instructions, http://www3.ce9.uscourts.gov/jury-
instructions/model-criminal (stating that 3.20 was renumbered in June 2018 to
3.18).
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see also 18 U.S.C. § 3237(a).
4. Finally, the district court did not err in its jury instructions on the
interstate transportation for prostitution count, 18 U.S.C. § 2421. Jackson argues
the jury instruction should have required that the jury find that Jackson’s dominant
purpose of the transportation was for prostitution. The given jury instruction was
consistent with the statute of the offense and this court’s model instruction, id.;
Model Crim. Jury Instr. 9th Cir. 8.191 (2010), and therefore was an accurate
description of the elements of the statute and was sufficient to guide the jury’s
deliberation, see United States v. Cherer, 513 F.3d 1150, 1154 (9th Cir. 2008).
AFFIRMED.
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