USA V. DAVID DELAY, No. 18-30080 (9th Cir. 2019)
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FILED NOT FOR PUBLICATION DEC 20 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, No. U.S. COURT OF APPEALS 18-30080 D.C. No. 2:15-cr-00175-RSL-1 v. DAVID D. DELAY, MEMORANDUM* Defendant-Appellant. Appeal from the United States District Court for the Western District of Washington Robert S. Lasnik, District Judge, Presiding Argued and Submitted December 12, 2019 Seattle, Washington Before: HAWKINS and McKEOWN, Circuit Judges, and PRATT,** District Judge. Appellant David D. Delay timely appeals his jury conviction of conspiracy to engage in sex trafficking by force, 18 U.S.C. §§ 1591(a)(1), 1594(c); attempted sex trafficking of a juvenile by force, fraud, and coercion, §§ 1591(b), 1594(a); sex * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Robert W. Pratt, United States District Judge for the Southern District of Iowa, sitting by designation. trafficking of an adult by force, fraud, and coercion, § 1591(a); transportation for the purpose of prostitution, § 2421; transportation for the purpose of prostitution through coercion and enticement, § 2422(a); two counts of production of child pornography, § 2251; and one count of obstruction and interference with sextrafficking enforcement, § 1591(d). We affirm. 1. Because Delay makes no showing of resulting prejudice, his claim that the district court abused its discretion in denying his sixth continuance fails. United States v. Zamora-Hernandez, 222 F.3d 1046, 1049 (9th Cir. 2000). 2. Circuit precedent forecloses Delay’s contention that the indictment contained multiplicitous counts in charging violations of both § 2421 and § 2422. United States v. Taitano, 442 F.2d 467, 469 (9th Cir. 1971). 3. Delay challenges his § 1591(d) conviction, arguing the Government offered insufficient evidence that he knew he would interfere with a federal investigation when he asked his federal codefendant to withdraw her federal guilty plea despite a federal no-contact order. To the extent the Government must prove such knowledge, a rational juror could have found it here. See United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010). Delay’s argument that § 1591(d) is unconstitutionally vague as applied fails, too, because a defendant whose “actions clearly come within the statute . . . cannot make a void for vagueness challenge.” United States v. Jae Gab Kim, 449 F.3d 933, 942 (9th Cir. 2006). 2 18-30080 4. Delay argues that limits on his cross-examination of certain government witnesses’ past acts violated his Confrontation Clause rights. But the district court did not abuse its discretion by limiting the scope of cross-examination within a given area here. See United States v. Larson, 495 F.3d 1094, 1101 (9th Cir. 2007) (en banc). 5. Contrary to Delay’s contention, the jury instructions were not flawed. First, the district court did not plainly err by not giving a diminished-capacity instruction. See United States v. Montgomery, 150 F.3d 983, 996 (9th Cir. 1998). Further, Delay did not (1) seek such an instruction, (2) present such a defense, or (3) show how any mental illness affected his “ability to attain the culpable state of mind which defines the crime[s].” 1 United States v. Christian, 749 F.3d 806, 815 (9th Cir. 2014) (quoting United States v. Twine, 853 F.2d 676, 678 (9th Cir. 1988)). Second, a district court has “substantial latitude” when tailoring jury instructions, United States v. Marsh, 26 F.3d 1496, 1502 (9th Cir. 1994), including whether to emphasize certain offense elements over others, United States v. 1 We decline to address Delay’s argument that his trial counsel rendered ineffective assistance because it was not raised in Delay’s opening brief, see United States v. Romm, 455 F.3d 990, 997 (9th Cir. 2006), and in any event is better suited for collateral review, see United States v. Benford, 574 F.3d 1228, 1231 (9th Cir. 2009). 3 18-30080 Peppers, 697 F.3d 1217, 1221 (9th Cir. 2012), and Delay has shown no reversible error regarding the jury instruction defining “coercion” with respect to § 1591.2 AFFIRMED. 2 We deny the Government’s motion to strike portions of Delay’s reply brief as moot. 4 18-30080
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