Filed: Aug. 03, 2018
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Summary: Case: 17-50320 Document: 00514586052 Page: 1 Date Filed: 08/03/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 17-50320 August 3, 2018 Lyle W. Cayce UNITED STATES OF AMERICA, Clerk Plaintiff - Appellee v. IRICK DRON ONEAL, Defendant - Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 7:16-CR-283-1 Before JOLLY, DENNIS, and ELROD, Circuit Judges. PER CURIAM:* Irick Dron O’Neal w
Summary: Case: 17-50320 Document: 00514586052 Page: 1 Date Filed: 08/03/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 17-50320 August 3, 2018 Lyle W. Cayce UNITED STATES OF AMERICA, Clerk Plaintiff - Appellee v. IRICK DRON ONEAL, Defendant - Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 7:16-CR-283-1 Before JOLLY, DENNIS, and ELROD, Circuit Judges. PER CURIAM:* Irick Dron O’Neal wa..
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Case: 17-50320 Document: 00514586052 Page: 1 Date Filed: 08/03/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 17-50320 August 3, 2018
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
IRICK DRON ONEAL,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:16-CR-283-1
Before JOLLY, DENNIS, and ELROD, Circuit Judges.
PER CURIAM:*
Irick Dron O’Neal was convicted by a jury of violating 18 U.S.C. § 1591
for sex trafficking a minor. Over the course of a week, O’Neal prostituted a
fifteen-year-old female minor, D.F. He now appeals his conviction and his life
sentence. He argues that the government failed to show that he was aware of
D.F.’s age. We hold that there is sufficient evidence for the jury to have
concluded that O’Neal was aware of D.F.’s age, acted in reckless disregard of
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 17-50320
that fact, or had a reasonable opportunity to observe D.F. Additionally,
although some evidence—specifically, a photograph from D.F.’s sixteenth-
birthday party and testimony elicited from D.F. that the party took place in a
federal courthouse—was erroneously admitted, this evidentiary error did not
affect O’Neal’s substantial rights. Finally, O’Neal challenges his life sentence
for lack of sufficient factual findings to support an enhancement based on a
pattern of activity. That argument was forfeited, however, because he failed
to adequately brief the contention.
In short, we find no reversible error. Thus, we AFFIRM O’Neal’s
conviction and his sentence.
I.
A.
On October 14, 2016, undercover agents conducted a sting operation at
the MCM Grande FunDome Hotel in Odessa, Texas, to rescue sexually
exploited minors. In the course of this operation, law enforcement officers
arranged for underage girls to come to the FunDome under the pretense of
offering them money in exchange for sex. D.F. was one of those underage girls.
At the FunDome, she met a law enforcement officer in a hotel room and agreed
to provide sexual services to him for $300. The officer immediately arrested
her.
O’Neal was also at the FunDome. Law enforcement officers observed his
pacing back and forth and repeatedly walking into the middle of a parking lot
so he could see the room where D.F. was located. After D.F. was arrested, a
different law enforcement officer detained O’Neal and brought him to a police
station. While there, O’Neal admitted to law enforcement officers that he knew
D.F., saying he was introduced to her by a man named T. White, who was
“running her,” i.e., prostituting her, but who told O’Neal that he “could have
her.” At this time, O’Neal indicated that he thought D.F. was nineteen years
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old, because (1) she had an ID (which was fake) and (2) she used this ID to rent
a hotel room. But he also admitted to never seeing D.F.’s ID. When examined
by police at this time, O’Neal did not dispute running Rashanda Dunbar—
O’Neal’s girlfriend and a prostitute who had helped O’Neal traffic women in
the past—or D.F. Instead, he said that Dunbar gave him money even though
he did not provide her protection or set up her advertisements because his
“game [was] strong,” and he was a “finesse pimp” rather than a “gorilla pimp”;
that is, he did not use physical coercion. He also said that he generally made
sure girls were over the age of consent by checking their IDs.
B.
One month later, O’Neal was indicted for one count of sex trafficking a
minor in violation of 18 U.S.C. § 1591(a). The statutory crime of sex trafficking
a minor who has not reached the age of eighteen has two elements: (1) the
government must show that the defendant knowingly placed a person into
prostitution by various means and (2) that defendant knew, or recklessly
disregarded the fact, that the person had not attained the age of eighteen
years. 18 U.S.C. § 1591(a). 1 But, the statute provides, the government can
forgo proving the second element if it can prove that “the defendant had a
reasonable opportunity to observe the person” placed in prostitution. 18 U.S.C.
§ 1591(c). 2
1 18 U.S.C. § 1591 (a) Whoever knowingly—
(1) in or affecting interstate or foreign commerce, or within the special
maritime and territorial jurisdiction of the United States, recruits,
entices, harbors, transports, provides, obtains, advertises, maintains,
patronizes, or solicits by any means a person; . . . knowing, or . . . in
reckless disregard of the fact, . . . that the person has not attained the
age of 18 years and will be caused to engage in a commercial sex act,
shall be punished as provided in subsection (b).
2 18 U.S.C. § 1591 (c):
In a prosecution under subsection (a)(1) in which the defendant had a
reasonable opportunity to observe the person so recruited, enticed,
harbored, transported, provided, obtained, maintained, patronized, or
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O’Neal’s trial started on January 17, 2017. At trial, the government
called multiple witnesses, including four law enforcement officers, D.F., and
Dunbar.
During its case in chief, the government introduced a picture of D.F. with
a cake, inscribed with “Happy 16th birthday!” Further, the government elicited
testimony from D.F. that the birthday picture was taken in a room at the
courthouse, after D.F. was arrested but before O’Neal’s trial. O’Neal objected
to the picture under Federal Rule of Evidence 403, arguing that the picture
was unfairly prejudicial because it (1) stated that D.F. was sixteen years old
and (2) showed her looking younger than her appearance at the relevant time
period. The government responded that it was introducing the picture as
anticipated rebuttal to other photographs of D.F. that the defense would show,
arguing that the picture “is simply an image that the government intends to
show during its closing so that they can have an idea of how the girl is.” The
district court overruled the objection.
After law enforcement officers testified, Dunbar took the stand. She said
that she had known O’Neal since 2003 and that she prostituted for him. In
relation to this case, Dunbar testified that O’Neal brought D.F. to Dunbar’s
house so they could meet each other after O’Neal picked D.F. up. Dunbar
testified that both she and O’Neal would drive D.F. to apartments, hotel rooms,
and houses to meet her customers. Dunbar said that it was common practice
for Dunbar to receive a call from a prostitute and then either she would pick
up the prostitute or she would direct O’Neal to pick up that prostitute. And
O’Neal was the one who would call D.F. to let her know that O’Neal and
Dunbar were on the way. Dunbar said that they would spend one to two hours
solicited, the Government need not prove that the defendant knew, or
recklessly disregarded the fact, that the person had not attained the age
of 18 years.
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in the car per day during the week in which all three were together. Dunbar
testified that all of D.F.’s money went to O’Neal.
D.F. testified next. She confirmed many of Dunbar’s details, including
that both Dunbar and O’Neal would drive D.F. to different men, that she
turned all of her money over to O’Neal, that she received all of her money from
O’Neal, and that she never paid Dunbar. D.F. further testified that she
received drugs from O’Neal and that she went to O’Neal’s house a few times
without Dunbar, in which D.F. and O’Neal engaged in sex and D.F. cleaned
O’Neal’s house. The government asked her about the photograph from her
sixteenth-birthday party. D.F. said that the photograph was of her on her
sixteenth birthday and that it was taken in the federal courthouse after she
was detained.
Next, O’Neal took the stand. O’Neal testified that he had prostituted
women in the past, including Dunbar. At the time D.F. entered the scene,
however, he said he was no longer prostituting them. Instead, O’Neal said
Dunbar used his phone to conduct prostitution business, including that of D.F.,
while he was in the car with her. O’Neal minimized the extent that he and
D.F. saw each other. But, on cross-examination, O’Neal agreed that he had a
chance to look at D.F., and he acknowledged that he saw her four to five times.
Further, O’Neal admitted to seeing D.F. in some photographs and agreed with
the government’s statement that his phone sent and received more than 100
text messages to and from D.F. In these messages, D.F. referred to O’Neal as
“Daddy,” and they contained the following: D.F. asking O’Neal for food and
“candy,” meaning drugs; O’Neal providing D.F. with instructions about what
to call herself, what to wear, where to be, and how much to charge; O’Neal
telling D.F. that she was “very sexy” to him; and D.F. telling O’Neal that she
was “horny.” Finally, O’Neal admitted that it would be reckless for a pimp not
to check a potential prostitute’s ID. He excused his own failure to not check
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D.F.’s ID, however, by saying that Dunbar was going to be prostituting D.F.,
not he.
The jury found O’Neal guilty of violating 18 U.S.C. § 1591. At his
sentencing, O’Neal objected to various parts of the presentence report (“PSR”).
The district court overruled all objections. After imposing enhancements—
including a five-level enhancement under U.S.S.G. § 4B1.5(b)(1) based on
O’Neal’s pattern of activity involving prohibited sexual conduct—the probation
officer calculated a total offense level of 43. O’Neal’s criminal history category
level was III. So, under the Guidelines, O’Neal’s advisory sentence range was
for life, a sentence that the district court imposed.
O’Neal appealed. He now argues that the district court reversibly erred
by admitting the photograph that showed D.F. with her sixteenth-birthday
cake, and further erred by allowing D.F. to testify that O’Neal had sex with her
and provided her with drugs. He also argues that the evidence is insufficient
to establish that O’Neal had the requisite level of awareness of D.F.’s age.
Finally, he argues that the district court erred by applying a sentencing
enhancement for a pattern of prohibited activity. We consider each of these
arguments as follows.
II.
A.
The first issue we undertake is whether the district court erred in
admitting the photograph of D.F. with her sixteenth-birthday cake. But before
we address that issue, we must address the parties’ disagreement over the
standard of review; that is, whether an abuse-of-discretion standard or a plain-
error standard applies.
O’Neal contends that we should review the district court’s admission of
the photograph under an abuse-of-discretion standard, arguing that his
original objection to the photograph under Federal Rule of Evidence 403 for
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the photograph being unfairly prejudicial was enough to preserve his objection.
But in his brief, and at oral argument, O’Neal relies primarily on a different
reason that the photograph is prejudicial than he did in his original 403
objection at trial. At trial, he argued that the photograph was prejudicial
because it showed (1) D.F. was sixteen and (2) D.F. looked younger than at the
time of the relevant events. But on appeal, he argues that “the danger of unfair
prejudice comes from a juror’s possible inference that DF ha[d] a special
relationship with the courthouse.” This argument is clearly different from the
objection made at trial. Consequently, the district court had no opportunity to
rule whether the photograph showed that D.F. had a special relationship with
the courthouse. So, we will review the district court’s decision to admit the
picture and allow the testimony for plain error. See United States v. Williams,
620 F.3d 483, 488–89 (5th Cir. 2010) (“[W]here the defendant did not object to
the evidence on the basis presented on appeal, we review the district court’s
evidentiary ruling for plain error.”); United States v. Burton,
126 F.3d 666, 671
(5th Cir. 1997) (“An appellant must raise an objection to the admission of
evidence at trial such that the issue is presented to the district court ‘with
sufficient specificity.’” (quoting United States v. Maldonado,
42 F.3d 906, 910
(5th Cir. 1995))). 3
3 If we treated the introduction of the photograph as independent of D.F.’s testimony
that followed, we would apply an abuse-of-discretion standard of review to reviewing the
admission of the picture alone. Given the timing of D.F. elaborating on the picture, however,
we do not treat the photograph independently of the testimony. But this point has no effect
on the outcome of the case. The standard of review under abuse of discretion would call for
a harmless-error analysis, and there is essentially no difference between this analysis and
plain error’s third prong—whether the error affects the defendant’s substantial rights.
Compare Fed. R. Crim. P. 52(a) (stating that an error is harmless when it does not affect a
defendant’s “substantial rights”), with Fed. R. Crim. P. 52(b) (stating that a court may
consider a plain error only if it affects a defendant’s “substantial rights”). Our conclusion
here is that the introduction of the photograph and the testimony did not affect O’Neal’s
substantial rights. So, although there was a proper objection to the photograph, we consider
it with D.F.’s testimony.
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B.
To show plain error under Federal Rule of Criminal Procedure 52(b),
O’Neal must show: (1) an error or defect not affirmatively waived (2) that is
“clear or obvious, rather than subject to reasonable dispute” and (3) that
affected his substantial rights. United States v. Prieto, 801 F.3d 547, 549–50
(5th Cir. 2015) (quoting Puckett v. United States,
556 U.S. 129, 135 (2009)). If
these three conditions are satisfied, we have “discretion to remedy the error—
discretion which ought to be exercised only if the error ‘seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.’”
Puckett, 556
U.S. at 135 (alteration in original) (quoting United States v. Olano,
507 U.S.
725, 732 (1993)). Examining an error is a fact-specific analysis, so comparing
error analyses from one case to another is not necessarily helpful. See United
States v. El-Mezain,
664 F.3d 467, 526 (5th Cir. 2011), as revised (Dec. 27,
2011).
1.
First, we conclude that there was a legal error in admitting the picture
and testimony. Rule 403 states: “The court may exclude relevant evidence if
its probative value is substantially outweighed by a danger of . . . unfair
prejudice . . . or needlessly presenting cumulative evidence.”
Here, the picture had minimal probative value. The jury had the
opportunity fully to observe D.F. at trial, only a few months after the crime
occurred. Furthermore, it had a copy of her fake ID, in which D.F. looks
substantially the same as she did in the sixteenth-birthday picture. The
picture was taken more than a month after D.F. was in custody.
On the other hand, the potential prejudicial effect was high. The
photograph was taken on her birthday in the courthouse. D.F. is pictured with
a cake that reads “Happy 16th birthday,” making it difficult for the jury to
separate the image of the girl from her age of sixteen that was placed on the
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cake. A few gifts appear in the picture beside the cake, indicating that D.F.
was given a birthday party. Then, the testimony came out that the photograph
was taken at the courthouse. The jury, thus, could easily assume that court
employees were sympathetic with D.F., as opposed to the defendant— both of
whom were called to testify to the jury. This was improper, because the jury
was called upon to weigh the testimony of each.
To the point: The probative value of the picture and testimony was
substantially outweighed by the risk of unfair prejudice. The picture and the
concomitant testimony should have been excluded under Rule 403, and its
admission was legal error.
2.
Second, we hold that the error was plain. There was no evidentiary
reason—in the light of the other evidence, including her presence in the
courtroom and her fake ID—for the government to introduce this picture and
the testimony relating thereto. Furthermore, it must have been clear that the
picture showed the friendliness of court employees and that such approval
stood in contrast to the opprobrium shown by the government to the defendant
and his debased conduct. Thus, the error in admitting the picture and
testimony, we think, was plain.
3.
Thus, we find that there was an error and that the error was plain.
Under the third prong of plain error, however, the error must affect a
defendant’s substantial rights. An error affects a defendant’s substantial
rights only when there is “‘a reasonable probability that, but for the error,’ the
outcome of the proceeding would have been different.” Rosales-Mireles v.
United States, 138 S. Ct. 1897, 1904–05 (2018) (quoting Molina-Martinez v.
United States,
136 S. Ct. 1338, 1343 (2016)); see also
Puckett, 556 U.S. at 135
(saying that an error affects a defendant’s substantial rights when he
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demonstrates that the error “affected the outcome of the district court
proceedings” (quoting Olano, 507 U.S. at 734)). The burden is on the defendant
to establish prejudice, and that burden “should not be too easy.” United States
v. Mares,
402 F.3d 511, 521 (5th Cir. 2005) (quoting United States v.
Dominguez Benitez,
542 U.S. 74, 82 (2004)).
The crucial issue for the jury to decide was whether O’Neal had
knowledge, either actual or constructive, that D.F. was under eighteen, which
can be shown by evidence that O’Neal either was reckless to the fact that D.F.
was under 18, or had a reasonable opportunity to observe her. 4 We conclude
below that because there was inescapable evidence of O’Neal’s knowledge, the
outcome of the trial was unaffected by the error.
a.
First, we examine the evidence that O’Neal recklessly disregarded the
fact that D.F. was under the age of eighteen.
We have not had many cases that discuss a defendant’s reckless
disregard of a victim’s age under § 1591. But the common definition of reckless
disregard is “[c]onscious indifference to the consequences of an act.” Disregard,
Black’s Law Dictionary (10th ed. 2014); see also United States v. Groce, 891
4The relevant statute provides,
(a) Whoever knowingly—(1) . . . recruits, entices, harbors, transports,
provides, obtains, advertises, maintains, patronizes, or solicits by any
means a person; . . . knowing, or . . . in reckless disregard of the fact,
. . . that the person has not attained the age of 18 years and will be
caused to engage in a commercial sex act, shall be punished . . . .
...
(c) : In a prosecution under subsection (a)(1) in which the defendant had
a reasonable opportunity to observe the person so recruited, enticed,
harbored, transported, provided, obtained, maintained, patronized, or
solicited, the Government need not prove that the defendant knew, or
recklessly disregarded the fact, that the person had not attained the age
of 18 years.
18 U.S.C. § 1591 (emphasis added).
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F.3d 260, 268 (7th Cir. 2018) (holding that criminal recklessness “requires
actual awareness of a substantial risk and conscious disregard of it”). And in
United States v. Phea, we held that the evidence was sufficient to convict a
defendant of knowing, or acting in reckless disregard of the fact, that a victim
was under eighteen when (1) he knew the victim did not have an ID sufficient
to obtain an airline ticket, (2) he spent significant time with the victim, (3) he
had sex with the victim, and (4) the jury was able to adduce that the victim
was under the age of eighteen when she testified at trial. 755 F.3d 255, 260–
61 (5th Cir. 2014).
This case presents closely similar facts that demonstrate clearly and
indisputably that O’Neal recklessly disregarded the fact that D.F. was younger
than eighteen. Like the defendant in Phea, O’Neal spent significant time with
D.F. and had sex with her. Furthermore, the jury had the opportunity to see
D.F. and observe that she was under the age of eighteen. See id. Although
O’Neal says he thought that D.F. was eighteen because she was able to rent a
hotel room, he did not even take the time to look at her depiction on her ID;
albeit a fake ID, it was an authentic picture of D.F. Indeed, O’Neal admitted
that it would have been reckless for him not to look at D.F.’s photograph ID to
verify that she was eighteen. But his sole excuse for not looking at the ID was
that Dunbar, not he, was the one “running” D.F., a defense that the jury
obviously rejected. On the evidence before it, the jury easily and reasonably
could decide that it is reckless for one involved in sex trafficking women to fail
to take steps to verify that a woman was over the age of eighteen.
Thus, the jury had absolutely compelling evidence to conclude that
O’Neal recklessly disregarded the fact that D.F. was under eighteen.
b.
Furthermore, we think that the error did not affect the outcome of the
trial, because the strength of the evidence was plentiful to allow a jury to
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conclude with certainty that O’Neal had a reasonable opportunity to observe
D.F. In addressing “reasonable opportunity to observe” as a basis for
knowledge under the statute, this method of analysis will often overlap with a
“reckless disregard” analysis.
In United States v. Copeland, we affirmed a conviction in which the
defendant, over a five-day period, directed and transported the victim in selling
sex. 820 F.3d 809, 811 (5th Cir. 2016); see also United States v. Blake,
868 F.3d
960, 975–76 (11th Cir. 2017) (holding that there was sufficient evidence to
prove that a defendant had a reasonable opportunity to observe the victim
when he saw the victim only five or six times and when one encounter involved
the defendant taking pictures of the girl for twenty minutes). Furthermore, in
United States v. Valas, we upheld the conviction of a defendant who had sex
with a minor prostitute on two different occasions when the defendant had no
other contact with the victim and he did not ask her about her background or
history.
822 F.3d 228, 235 (5th Cir. 2016).
Here, we conclude that the evidence leaves no question but that O’Neal
had an extensive opportunity to observe D.F. The record contains evidence
that O’Neal “acquired” D.F. from another pimp. From there, he took D.F. to
Dunbar’s house. He then drove around with her multiple times during the
week as both a driver and a passenger. And during the week, D.F. went to
O’Neal’s house at least once to have sex with him. Text messages corroborated
many of these details.
Considering these numerous encounters with D.F., there is exhaustive
evidence to support a conclusion that O’Neal had a reasonable opportunity to
observe D.F.
* * *
Concluding our plain-error analysis: Although the introduction of the
picture and the accompanying testimony was error, and the error was plain,
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the evidence did not affect O’Neal’s substantial rights. We reach this
conclusion because the evidence of O’Neal’s awareness of D.F.’s age is so
overwhelming that, notwithstanding the prejudicial nature of the photograph
and the accompanying testimony, it had no substantial effect on the jury’s
verdict. Stated differently, O’Neal has not shown “‘a reasonable probability
that, but for the error,’ the outcome of the proceeding would have been
different.” Rosales-Mireles, 138 S. Ct. at 1904–05 (quoting
Molina-Martinez,
136 S. Ct. at 1343). Thus, his plain-error challenge fails.
III.
O’Neal also makes a direct challenge to the sufficiency of the evidence at
trial to prove that he knew—or acted with reckless disregard of the fact—that
D.F. was a minor, or that he had a reasonable opportunity to observe her. This
argument is addressed above, in which we conclude that the evidence of his
knowledge was overwhelming. Thus, we find no necessity in repeating this
argument.
IV.
O’Neal further argues that the district court erred—under Federal Rules
of Evidence 403 and 404(b)—by allowing D.F. to testify that O’Neal engaged in
sex with her and that he provided her with drugs. We think the court did not
err.
Because the defendant properly objected, we review the district court’s
evidentiary ruling for abuse of discretion subject to the harmless error
standard. Valas, 822 F.3d at 239–40.
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We first address his Rule 404(b) challenge. 5 As we have just made
mention, Rule 404(b) applies only to evidence of extrinsic acts that are
unrelated to the defendant’s current crime. United States v. Sumlin, 489 F.3d
683, 689 (5th Cir. 2007). On the other hand, intrinsic evidence—meaning
evidence related to the current crime—“is generally admissible ‘so that the jury
may evaluate all the circumstances under which the defendant acted.’”
Id.
(quoting United States v. Royal,
972 F.2d 643, 647 (5th Cir. 1992)). Evidence
of an act is intrinsic when (1) “it and evidence of the crime charged are
inextricably intertwined,” (2) “both acts are part of a single criminal episode,”
or (3) “it was a necessary preliminary to the crime charged.”
Id. The
challenged intrinsic evidence here is admissible to allow the jury to understand
the complete episode of the crime and “to evaluate all circumstances under
which the defendant acted.” United States v. Ceballos,
789 F.3d 607, 620–21
(5th Cir. 2015) (quoting United States v. Rice,
607 F.3d 133, 141 (5th Cir.
2010)).
We reiterate that O’Neal was charged with sex trafficking a minor. The
evidence showing that he provided the minor with drugs and engaged in sex
5 Federal Rule of Evidence 404
(b) Crimes, Wrongs, or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act
is not admissible to prove a person’s character in order to show
that on a particular occasion the person acted in accordance with
the character.
(2) Permitted Uses; Notice in a Criminal Case. This
evidence may be admissible for another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident. On request by a
defendant in a criminal case, the prosecutor must:
(A) provide reasonable notice of the general nature of any
such evidence that the prosecutor intends to offer at trial;
and
(B) do so before trial—or during trial if the court, for good
cause, excuses lack of pretrial notice.
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with her was intrinsic evidence relevant to the charged crime—part of a single
weeklong criminal episode. This conduct does not fall under the prohibitions
of Rule 404(b). See Sumlin, 489 F.3d at 689.
Further, O’Neal has not shown that the evidence was barred under Rule
403. As we have earlier noted, under that rule, a court can exclude relevant
evidence only if its probative value is substantially outweighed by a danger of
unfair prejudice or confusing of the issues, among other reasons. Although
there could be some risk of unfair prejudice or confusing of the issues—because
O’Neal was not charged with statutory rape or any drug-related crimes—the
testimony was highly probative of O’Neal’s denial that he had an opportunity
to observe that D.F. was underage. See Valas, 822 F.3d at 235 (finding that
the defendant had a reasonably opportunity to observe a female minor victim
when he had no contact with her except when he had sex with her on two
different occasions).
Thus, the district court did not err under Rule 404(b) or Rule 403 by
allowing the evidence of O’Neal having sex with D.F. and providing her with
drugs.
V.
Finally, O’Neal argues that the district court plainly erred by imposing
an enhancement under U.S.S.G. § 4B1.5(b)(1) for a pattern of activity involving
prohibited conduct. The district court overruled O’Neal’s objection that the
prior cases referenced by his PSR—in which O’Neal had previously been
convicted for trafficking minors—did not qualify as “prohibited sexual conduct”
or did not bear sufficient indicia of reliability. O’Neal argues that the district
court’s factual findings were insufficient to support the enhancement because
the court “failed to identify which federal or state offense the two prior
occasions qualified for.”
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No. 17-50320
This argument is reviewed for plain error, because O’Neal did not raise
the argument in the district court. Olano, 507 U.S. at 731. But it is
unnecessary to address the plain-error standard here, because O’Neal failed to
brief the plain error on appeal. He does not contend that the district court
made a clear or obvious error, that the error affected his substantial rights, or
that the error seriously affects the fairness, integrity or public reputation of
judicial proceedings. So, O’Neal has forfeited any contention that the district
court committed reversible plain error. See Sec. & Exch. Comm’n v. Life
Partners Holdings, Inc.,
854 F.3d 765, 784 (5th Cir. 2017) (issues not
adequately briefed are forfeited); see also, e.g., United States v. Garcia-Lemus,
509 F. App’x 324, 324 (5th Cir. 2013) (no plain error where the defendant made
“no attempt to demonstrate [that the district court’s error] . . . would seriously
affect the fairness, integrity, or public reputation of judicial proceedings”).
VI.
Although there was evidential error in the trial, we hold no errors
require reversal of O’Neal’s conviction or sentence. We do not, however,
withdraw from our disapproval of the government’s conduct in introducing the
photograph of D.F.’s sixteenth-birthday cake and its eliciting of unnecessary
and prejudicial testimony from D.F. Nevertheless, because of the powerful
evidence showing that O’Neal was reckless to the fact that D.F. was underage
and because O’Neal had abundant opportunity to observe D.F., the error did
not affect O’Neal’s substantial rights, and thus does not affect the outcome of
the appeal.
We further hold (1) there was sufficient evidence to show that O’Neal
was reckless to the fact that D.F. was under eighteen and that he had the
reasonable opportunity to observe her, all to establish knowledge of her age;
(2) the district court did not err by allowing D.F.’s testimony that O’Neal had
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No. 17-50320
sex with her and provided her with drugs; and, finally, (3) O’Neal forfeited his
challenge to the enhancement under U.S.S.G § 4B1.5(b)(1).
Accordingly, the judgment of conviction and sentence is, in all respects,
AFFIRMED.
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