                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 15 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 12-50101

              Plaintiff - Appellee,              D.C. No. 3:10-cr-02740-W-1

  v.
                                                 MEMORANDUM *
RALPH DARNELL REDD, AKA Zig
Zag,

              Defendant - Appellant.



                   Appeal from the United States District Court
                     for the Southern District of California
                Thomas J. Whelan, Senior District Judge, Presiding

                       Argued and Submitted March 5, 2013
                              Pasadena, California

Before: PAEZ and WATFORD, Circuit Judges, and KENNELLY, District Judge.**

       Ralph Darnell Redd appeals his jury convictions for sex trafficking of a

minor, 18 U.S.C. § 1591 (Count 1); production of sexually explicit images of a




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Matthew F. Kennelly, United States District Judge for
the Northern District of Illinois, sitting by designation.
minor, § 2251 (Count 2); and distribution of such images, § 2252 (Count 3). We

affirm.

      1.     Redd contends that there was insufficient evidence that he possessed

the requisite mental state for each count when he committed the acts that violated

the law. This argument falters on P.L.’s testimony that she told Redd her true age

near the beginning of their relationship. See United States v. Brooks, 610 F.3d

1186, 1197 (9th Cir. 2010). Redd asserts that no reasonable jury could have

accepted P.L.’s testimony, largely because she had lied about her age many times

before. But P.L. explained her turn-about—she had lied in the past to protect

Redd, but ultimately was not willing to go to jail for him by committing perjury. A

reasonable jury could have credited this testimony and concluded that Redd had

actual knowledge of P.L.’s age when he committed the acts upon which each of the

counts is predicated.

      2.     Redd next argues the district court was obligated to sever the three

counts against him because there was an intolerable risk that the jurors would

confuse the three different levels of mens rea required for the three crimes. This

argument lacks support. Redd never requested severance and does not argue that

the jury was improperly instructed on any of the counts.




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      3.     Redd argues that 18 U.S.C. § 1591(c)—which permits conviction for

sex trafficking of a minor when the defendant “had a reasonable opportunity to

observe” the minor, even if he had no actual knowledge of her age—is

unconstitutionally vague as applied and that jury instructions quoting the statute

were therefore unconstitutional. He also argues that § 1591 violates due process by

improperly reducing the government’s burden to show knowledge of age beyond a

reasonable doubt. We need not address these arguments because, by convicting

Redd on Count 3, the jury necessarily found that Redd had actual knowledge of

P.L.’s age before she was detained in juvenile hall. We likewise need not address

Redd’s argument that there was insufficient evidence that Redd “deliberately

avoided” learning P.L.’s age.

      4.     Redd next contends that the district court abused its discretion by

admitting cumulative and inflammatory evidence and then denying a supplemental

instruction identifying the specific evidence pertinent to each charged count. Redd

concedes, however, that the district court was aware that Redd’s pimping was

undisputed and so limited the admissibility of exhibits going solely to that fact.

The district court overruled a relatively small number of Redd’s pertinent

objections and did not abuse its discretion in determining that the admitted exhibits

were relevant and not unduly prejudicial. Nor did the district court abuse its


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discretion in declining to read a supplemental instruction requested after the jury

may have begun to deliberate.

      5.     Finally, Redd argues that the prosecution committed misconduct by

urging the jurors to convict Redd in order to address general social ills. The

prosecution told jurors that “[t]his law is in place . . . because we can’t have people

turning a blind eye. . . . Because child prostitution, as you’ve heard, is an

epidemic.” The prosecution added that San Diego, where the trial was held, “is the

eighth worst city in the United States for child prostitution. This is a serious

offense, and it has to be stopped.”

      Redd did not properly preserve his objection in the district court. The plain

error standard therefore applies. See United States v. Del Toro-Barboza, 673 F.3d

1136, 1152 (9th Cir. 2012). Reversal for plain error is appropriate only if the

statements were (1) improper and (2) substantially prejudiced Redd’s trial. United

States v. Sanchez, 659 F.3d 1252, 1256 (9th Cir. 2011); see also Del Toro-

Barboza, 673 F.3d at 1152 (“We will overturn a conviction because of statements

in closing arguments for plain error only where the statement ‘undermine[s] the

fundamental fairness of the trial and contribute[s] to a miscarriage of justice.’”

(quoting United States v. Gwaltney, 790 F.2d 1378, 1386 (9th Cir. 1986)

(alterations in original))). Even if both prongs of the test are met, “[t]he plain error


                                           4
doctrine ‘authorizes the Courts of Appeals to correct only particularly egregious

errors . . . that seriously affect the fairness, integrity or public reputation of judicial

proceedings.’” United States v. Bracy, 67 F.3d 1421, 1432 (9th Cir. 1995)

(quoting United States v. Young, 470 U.S. 1, 15 (1985)).

       The prosecution’s comments were improper because their implication was

that the jury should convict Redd “for reasons wholly irrelevant to [Redd’s] own

guilt or innocence,” i.e., “to protect community values, preserve civil order, or

deter future lawbreaking.” Sanchez, 659 F.3d at 1256 (internal quotation marks

omitted); see also United States v. Weatherspoon, 410 F.3d 1142, 1149 (9th Cir.

2005) (improper for prosecutor to say that “finding this man guilty is gonna protect

other individuals in this community”); United States v. Leon-Reyes, 177 F.3d 816,

823 (9th Cir. 1999) (prosecutors may not “point to a particular crisis in our society

and ask the jury to make a statement” with their verdict); United States v. Williams,

989 F.2d 1061, 1072 (9th Cir. 1993) (improper to exhort jury to “[t]ell these

defendants that we do not want [methamphetamine] in Montana”).

       Reversal is not required here, however. Redd’s prejudice argument relies

heavily on Sanchez, in which this court reversed a conviction on plain-error review

based on improper prosecutorial argument. 659 F.3d at 1261. But the facts of

Sanchez are distinguishable. There, the prosecutor made a (1) “fully developed


                                             5
argument” (2) just before the jury retired (3) bearing no logical connection to the

testimony or other evidence (4) that directly encouraged the jury to resolve the key

credibility dispute against the defendant. Id. at 1258-61; see also Weatherspoon,

410 F.3d at 1146-49 (reversal warranted under plain-error standard where

prosecutor, among other things, impermissibly vouched for and against credibility

of important witnesses). Here, in contrast, the prosecutor’s comments (1) did not

constitute a “fully developed argument” for conviction; (2) were not uttered just

before the jury retired; (3) and connected, in part, to testimony about the frequency

of sex trafficking of minors in San Diego; and (4) there was other evidence of

Redd’s knowledge of P.L.’s age beyond P.L.’s testimony and therefore the

conviction did not rest solely on a credibility determination. In light of the

foregoing, and the totality of the evidence presented at trial, we cannot say that the

prosecutor’s comments were so egregious that they tainted the verdict and deprived

Redd of a fair trial.

       AFFIRMED.




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