United States v. Demecia Washington ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 30 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-10344
Plaintiff-Appellee, D.C. No.
2:18-cr-00384-APG-EJY-2
v.
DEMECIA SHONTRES WASHINGTON, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Argued and Submitted August 15, 2023
San Francisco, California
Before: CALLAHAN and BADE, Circuit Judges, and ANTOON,** District Judge.
Demecia Washington challenges her convictions on seven felony counts
related to the sex trafficking of a 15-year-old runaway girl. Although she failed to
object at trial, Washington now argues that the district court erred by: (1)
admitting expert testimony that Washington contends crossed the line into
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable John Antoon II, United States District Judge for the
Middle District of Florida, sitting by designation.
impermissible character evidence; (2) failing to instruct the jury on the elements of
the substantive offenses underlying Washington’s conspiracy charges; and (3)
allowing the Government to dilute the burden of proof and appeal to the jurors’
emotions during closing argument. Washington also challenges her lifetime term
of supervised release as substantively unreasonable. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
In the absence of a contemporaneous objection, we review evidentiary
issues, jury instructions, and allegations of prosecutorial misconduct for plain
error. See United States v. Gomez-Norena, 908 F.2d 497, 500 (9th Cir. 1990)
(evidentiary issues); United States v. McCaleb, 552 F.3d 1053, 1057 (9th Cir.
2009) (jury instructions); United States v. Reyes, 660 F.3d 454, 461 (9th Cir. 2011)
(prosecutorial misconduct). Challenges to the “substantive unreasonableness of a
sentence—whether objected to or not at sentencing—[are] reviewed for abuse of
discretion.” United States v. Autery, 555 F.3d 864, 871 (9th Cir. 2009).
1. It was not plain error for the district court to allow FBI Agent Landau
to testify as an expert on the “common dynamics that occur in the operation of sex
trafficking.” Such testimony was admissible and did not amount to improper
character evidence. See United States v. Taylor, 239 F.3d 994, 997–98 (9th Cir.
2001). And even if admission of this testimony was erroneous, the error was
harmless in light of the significant evidence of Washington’s guilt. See, e.g.,
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United States v. Ogbuehi, 18 F.3d 807, 812 (9th Cir. 1994).
2. Nor did the district court plainly err in its instructions to the jury. The
court did omit the elements of the object offenses from its instructions on the
corresponding conspiracy counts, but Washington was also charged with—and
convicted of—the object offenses themselves. The elements of those offenses
were included in the instructions for those counts. Viewed “as a whole in the
context of the entire trial,” the jury instructions were more than adequate “to guide
the jury’s deliberation.” United States v. Moore, 109 F.3d 1456, 1465 (9th Cir.
1997) (quoting United States v. Perez, 989 F.2d 1111, 1114 (9th Cir. 1993)); see
also United States v. Alghazouli, 517 F.3d 1179, 1188–92 (9th Cir. 2008) (finding
no plain error in a conspiracy case where the elements of the object offense were
omitted from the jury instructions but were made clear to the jury in a separate
special verdict form).
3. The Government did not dilute the burden of proof or encourage the
jurors to convict Washington based on emotion during closing argument. On the
contrary, the Government referred to the correct, reasonable doubt standard at least
fourteen times during its closing, and its references to Washington as a mother
were not an improper emotional appeal. Moreover, even if improper, neither of
these purported transgressions—alone or in combination—“tainted the verdict and
deprived [Washington] of a fair trial.” United States v. Weatherspoon, 410 F.3d
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1142, 1151 (9th Cir. 2005) (quoting United States v. Smith, 962 F.3d 923, 935 (9th
Cir. 1992)).
4. Finally, having assessed the substantive reasonableness of
Washington’s sentence “in light of all the 18 U.S.C. § 3553(a) factors, including
the applicable Guidelines range,” United States v. Cantrell, 433 F.3d 1269, 1280
(9th Cir. 2006), we find no abuse of discretion in the district court’s imposition of
lifetime supervised release to follow Washington’s below-Guidelines-range 216-
month prison term.
AFFIRMED.
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