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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-13268
Non-Argument Calendar
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D.C. Docket No. 9:10-cr-80166-KLR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALLEN MARK LEVINSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(January 4, 2013)
Before HULL, EDMONDSON and BLACK, Circuit Judges.
PER CURIAM:
Allen Mark Levinson appeals his convictions and total sentence of 480
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months’ imprisonment for (1) using a computer to attempt to persuade, induce,
entice, and coerce a minor to engage in sexual activity, in violation of 18 U.S.C.
§ 2422(b); and (2) as a registered sex offender, committing a felony offense
involving a minor, in violation of 18 U.S.C. § 2260A. We affirm the sentence and
conviction.
On appeal, Levinson argues that the district court abused its discretion by
refusing to sever the counts for trial. He further argues that the court abused its
discretion in several of its evidentiary rulings. In particular, Levinson challenges
(a) the court’s denial of Levinson’s motions in limine to exclude evidence, under
Fed.R.Civ.P. 404(b) and 414, that he had participated in hundreds of online chats
involving sex with minors, that he possessed virtual and real child pornography,
that he was convicted in 1998 for sexual abuse, and that he sexually abused his
daughter when she was a minor; (b) the court’s order, following a Daubert1
hearing, excluding the testimony of Levinson’s proposed expert in human
sexuality, sexual fantasizing, and sexual role playing; (c) the court’s order
overruling Levinson’s objections to the government’s questions when it
cross-examined Levinson on his settlement of his daughter’s civil lawsuit against
1
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469
(1993).
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him; and (d) the court’s ruling denying Levinson’s motion for mistrial following
his objections to his son-in-law’s testimony, presented during the government’s
case-in-chief, that Levinson’s daughter wished to testify against him at trial but
could not because she had suffered a stroke. In addition to challenging these
evidentiary rulings, Levinson argues that, by allowing testimony and thereafter
instructing the jury that Levinson committed a crime under Florida law, the court
improperly instructed the jury and relieved the government of its burden to prove
every element of a charged offense. Also, Levinson argues that the district court
imposed a sentence that was unconstitutionally disproportionate.
I.
We normally “undertake a two-step analysis to determine whether separate
charges were properly tried at the same time.” United States v. Hersh, 297 F.3d
1233, 1241 (11th Cir. 2002). First, we review de novo whether the counts were
properly joined under Fed.R.Crim.P. 8(a). Id. Rule 8(a) allows two or more
offenses to be charged in the same indictment, in a separate count for each offense,
“if the offenses charged . . . are of the same or similar character, or are based on
the same act or transaction, or are connected with or constitute parts of a common
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scheme or plan.” Fed.R.Crim.P. 8(a). Second, we review for an abuse of
discretion a district court’s denial of a defendant’s motion, pursuant to
Fed.R.Crim.P. 14, to sever the counts. Hersh, 297 F.3d at 1241. To justify
reversal of a district court’s denial of a motion to sever, “the appellant must
demonstrate that he received an unfair trial and suffered compelling prejudice.”
United States v. Walser, 3 F.3d 380, 386 (11th Cir. 1993) (quotations and citations
omitted). Severance is not required when “the possible prejudice may be cured by
a cautionary instruction.” Id. at 387. A jury is presumed to follow the court’s
instructions. United States v. Ramirez, 426 F.3d 1344, 1352 (11th Cir. 2005).
Here, the charged offenses were properly joined because they arose out of
the same series of facts, with the only difference between them being the
requirement of proving an additional element for the § 2260A count: that
Levinson was a registered sex offender. See 18 U.S.C. §§ 2422(b) and 2260A.
Levinson has not met his burden of showing that the jury was unable to follow the
court’s limiting instruction to evaluate the two charged crimes independently of
each other. Furthermore, in the light of all of the circumstances, including the
substantial evidence of Levinson’s guilt, Levinson could not have suffered
prejudice from the jury’s having heard evidence that he was a registered sex
offender.
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II.
We review a district court’s evidentiary rulings for abuse of discretion.
United States v. Turner, 474 F.3d 1265, 1275 (11th Cir. 2007). An erroneous
evidentiary ruling does not require reversal, however, if the resulting error was
harmless. Id. “[A] non-constitutional error is harmless if, viewing the
proceedings in their entirety, a court determines that the error did not affect the
verdict, or had but very slight effect.” United States v. Arias, 431 F.3d 1327, 1338
(11th Cir. 2005) (quotation omitted). “Overwhelming evidence of guilt is one
factor that may be considered in finding harmless error.” United States v.
Phaknikone, 605 F.3d 1099, 1109-1111 (11th Cir.), cert. denied, 131 S.Ct. 642
(2010).
II(a).
Under Federal Rule of Evidence 404(b), prior act evidence may be
admissible for such purposes as “proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.” Fed.R.Evid. 404(b).
We employ a three-part test to determine whether evidence is admissible under
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Rule 404(b), asking (1) if the evidence is “relevant to an issue other than the
defendant’s character,” (2) if there is “sufficient proof so that a jury could find that
the defendant committed the extrinsic act,” and (3) if the evidence meets the other
requirements of Fed.R.Evid. 403. United States v. Jernigan, 341 F.3d 1273, 1280
(11th Cir. 2003) (quotation omitted).
An exception to the limitations of Rule 404(b) exists for “child molestation”
cases: Federal Rule of Evidence Rule 414(a) --
In a criminal case in which the defendant is accused of an offense of
child molestation, evidence of the defendant’s commission of another
offense or offenses of child molestation is admissible, and may be
considered for its bearing on any matter to which it is relevant.
So, evidence that a defendant engaged in child molestation in the past is
admissible to prove that the defendant has a disposition of character that makes it
more likely that he did commit the act of child molestation charged in the instant
case. See Fed.R.Evid. 414(a).
Federal Rule of Evidence 403 provides that relevant evidence “may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice.” Fed.R.Evid. 403. “In evaluating the district court’s ruling under Rule
403, we view the evidence in the light most favorable to admission, maximizing its
probative value and minimizing its undue prejudicial impact.” United States v.
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Bradberry, 466 F.3d 1249, 1253 (11th Cir. 2006).
The evidence on Levinson’s other internet chat sessions and possession of
real and virtual child pornography was admissible under Rule 404(b). It was
relevant to the issue of intent, was reliable, and was not substantially more
prejudicial than probative. Only a very small sampling of the chats that were
seized were actually presented to the jury, and the jury was instructed for the chats
and child pornography to consider the evidence only for the purpose of
determining whether the defendant had the state of mind or intent necessary to
commit the crime charged in the indictment. The court actually gave multiple
limiting instructions, including a final Rule 404(b) instruction.
The evidence of Levinson’s 1998 conviction and alleged sexual abuse of his
daughter was admissible under both Rule 404(b) and Rule 414. Even if there were
some question as to the admissibility of the evidence, it would not necessitate
reversal because there was overwhelming evidence of Levinson’s guilt in this
case.
II(b).
Under the Federal Rules of Evidence, expert testimony is admissible if
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(1) the expert is qualified to testify on the subject matter of his testimony; (2) the
methodology that the expert used to reach his or her conclusions is sufficiently
reliable; and (3) the expert’s testimony will assist the trier of fact in understanding
the evidence or in determining a fact at issue. United States v. Frazier, 387 F.3d
1244, 1260 (11th Cir. 2004) (en banc); Fed.R.Evid. 702. Before permitting expert
testimony, the district court must make a preliminary determination about whether
the expert’s methodology is reliable. United States v. Brown, 415 F.3d 1257, 1266
(11th Cir. 2005). We give particular deference to the district court’s decision to
admit or exclude expert testimony; and we will affirm unless the district court
applied the wrong law, followed the wrong procedure, relied on clearly erroneous
facts, or committed a clear error in judgment. Id.
The district court did not abuse its discretion in granting the government’s
motion in limine to exclude the testimony of Levinson’s proposed expert witness,
Dr. Marty Klein. Klein’s opinions did not meet the Daubert standards for
admissibility. “Considerable leeway” must be afforded to the district court in
deciding the reliability of expert testimony, we accept the court’s decision to
exclude Klein’s testimony. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,
152, 119 S.Ct. 1167, 1176, 143 L.Ed.2d 238 (1999).
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II(c).
Evidence of the settlement of a claim is not admissible “either to prove or
disprove the validity or amount of a disputed claim or to impeach by a prior
inconsistent statement or a contradiction.” Fed.R.Evid. 408(a). Exceptions exist
where the evidence is admitted for such purposes as “proving a witness’s bias or
prejudice, negating a contention of undue delay, or proving an effort to obstruct a
criminal investigation or prosecution.” Fed.R.Evid. 408(b). This Court has held
that Rule 408 applies to both criminal and civil proceedings. Arias, 431 F.3d at
1336.
Levinson did not expressly make a Rule 408 objection at trial. Even under
review for preserved error, however, we affirm the district court’s decision. The
court’s admission of evidence that Levinson had settled his daughter’s lawsuit
against him was, at most, harmless error in the light of the overwhelming evidence
of Levinson’s guilt in this case.
II(d).
Under the Confrontation Clause, “testimonial hearsay” is inadmissible,
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unless the declarant is unavailable, and the defendant had a prior opportunity for
cross-examination. Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354,
1374, 158 L.Ed.2d 177 (2004). Where a defendant objected on hearsay grounds,
but did not mention the Confrontation Clause or Crawford, our review is for plain
error only. United States v. Chau, 426 F.3d 1318, 1321-22 (11th Cir. 2005). “An
appellate court may not correct an error the defendant failed to raise in the district
court unless there is: (1) error, (2) that is plain, and (3) that affects substantial
rights.” United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005)
(quotation omitted). “The decision of whether to grant a mistrial lies within the
sound discretion of a trial judge as he or she is in the best position to evaluate the
prejudicial effect of improper testimony.” United States v. Perez, 30 F.3d 1407,
1410 (11th Cir. 1994).
Levinson did not preserve a Crawford objection at trial. We do not see
plain error. Furthermore, even if there were plain error, it would not have affected
Levinson’s substantial rights. The district court gave a curative instruction.
Levinson’s son-in-law’s testimony was not “so highly prejudicial as to be
incurable by the trial court’s admonition.” Perez, 30 F.3d at 1410. Thus, the
district court did not abuse its discretion by denying Levinson’s motion for
mistrial.
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III.
We review de novo whether the jury instructions “misstated the law or
misled the jury to the prejudice of the objecting party.” United States v. Felts, 579
F.3d 1341, 1342 (11th Cir. 2009). “The district court has broad discretion in
formulating a jury charge so long as the charge . . . accurately reflects the law and
the facts,” of the case. United States v. Richardson, 233 F.3d 1285, 1292 (11th
Cir. 2000). We will only reverse a conviction if, after examining the entire charge,
we determine that the issues of law were inaccurately presented or the charge
improperly guided the jury in such a substantial way as to violate due process. Id.
A jury instruction must not relieve the government of its burden of proving every
element of an offense. United States v. Dean, 517 F.3d 1224, 1231 (11th Cir.
2008).
The district court did not charge the jury that Levinson had violated Florida
law. It specifically instructed the jury that, for a violation of § 2422(b), the
government had to “prove that one or more individuals engaged in the sexual
activity could have been charged with a criminal offense under the laws of the
state of Florida.” The court’s instruction would have cured any arguable error
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arising from the admission of testimony that Levinson violated Florida law.
Moreover, any such error would have been harmless, because of the overwhelming
amount of evidence supporting the jury’s verdict.
IV.
“The Eighth Amendment, which forbids cruel and unusual punishments,
contains a narrow proportionality principle that applies to noncapital sentences.”
United States v. Lyons, 403 F.3d 1248, 1256 (11th Cir. 2005) (quotation omitted).
The proportionality principle “forbids only extreme sentences that are grossly
disproportionate to the crime.” United States v. Farley, 607 F.3d 1294, 1343 (11th
Cir.) (citation and quotation omitted), cert. denied, 131 S.Ct. 369 (2010). When
addressing an Eighth Amendment proportionality challenge,
a court must make a threshold determination that the sentence
imposed is grossly disproportionate to the offense committed. The
defendant has the burden of making that showing. If the sentence is
grossly disproportionate, the court must then consider the sentences
imposed on others convicted in the same jurisdiction and the
sentences imposed for commission of the same crime in other
jurisdictions.
United States v. Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006) (citations and
quotations omitted). “In general, a sentence within the limits imposed by statute is
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neither excessive nor cruel and unusual under the Eighth Amendment.” Id.
(quotation and citation omitted).
Levinson’s sentence was not grossly disproportionate to his crimes.
Because Levinson has not shown that this case is the rare case in which “a
threshold comparison of the crime committed and the sentence imposed leads to
an inference of gross disproportionality,” we need not engage in a comparison of
his sentence to the sentences authorized or required under other statutes in this or
another jurisdiction. See Farley, 607 F.3d at 1345.
Conclusion
The evidence of guilt is strong here. Based on reviews of the record and the
parties’ briefs, we conclude that the district court did not commit reversible error.
No abuse of discretion in its ruling on Levinson’s severance motion, nor in its
evidentiary rulings has been shown. The district court did not improperly relieve
the government of its burden to prove one of the elements of a charged offense.
The sentence it imposed was not unconstitutionally disproportionate.
AFFIRMED.
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