                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                     August 11, 2006
                                   TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                       Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff - Appellee,
                                                        No. 05-6266
 v.                                               (D.C. No. CR-04-79-1-R)
                                                        (W .D. Okla.)
 TR OY LA M A R SU TH ER LA N D,

          Defendant - Appellant.



                              OR D ER AND JUDGM ENT *


Before KELLY, M cKA Y, and LUCERO, Circuit Judges. **


      Defendant-Appellant Troy Lamar Sutherland appeals from his conviction

and sentence following a jury verdict finding him guilty of knowingly

transporting minors for the purpose of prostitution in violation of 18 U.S.C.

§ 2423(a) (count I), and knowingly recruiting, enticing and transporting in

interstate commerce of minors knowing each would be caused to engage in a



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
comm ercial sexual act in violation of 18 U.S.C. § 1591(a) (count II). The district

court sentenced M r. Sutherland to two concurrent terms of imprisonment of 240

months and two three-year supervised release terms. On appeal, M r. Sutherland

argues that (1) the district court erred by allowing expert law enforcement

testimony under Federal Rule of Evidence 702, (2) the district court erred in

allowing evidence of uncharged bad acts to be admitted at trial under Federal

Rules of Evidence 402, 403 and 404(b), (3) there was insufficient properly

admitted evidence to convict M r. Sutherland, and (4) the district court erred in

overruling certain objections to the PSR and improperly considered facts not

proven to a jury in violation of the Sixth Amendment. Our jurisdiction arises

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.



                                     Background

      The parties are familiar w ith the facts and we need not restate them here.

W e do note that w e view the facts in the light most favorable to the verdict. On

M ay 5, 2004, a federal grand jury indicted M r. Sutherland. Prior to trial, M r.

Sutherland filed a motion in limine to exclude the testimony of Andrew Schmidt,

a sergeant in the M inneapolis Police Department. M r. Sutherland argued that the

court should exclude Sgt. Schmidt’s testimony because it was improper expert

testimony under Federal Rules of Evidence 702 and 704(b), and because its

probative value was substantially outweighed by its prejudicial effect under

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Federal Rule of Evidence 403. The government explained that it was calling Sgt.

Schmidt to testify about the prostitution business, including the relationship

between the pimps and prostitutes, the recruitment process, and how the

prostitutes become dependent on the pimp. The district court held a hearing on

M r. Sutherland’s motion and concluded that the witness’s testimony was relevant

but the court instructed the government to “tailor it to this case.” Tr. at 72.

      Also prior to trial, the government filed a notice under Rule 404(b) of its

intent to admit evidence of M r. Sutherland’s (1) sexual relationship with the

minor females, (2) providing them illegal drugs, (3) selling two of the girls to a

pimp, (4) taking them to a truck stop for prostitution purposes, and (5) providing

them as sexual partners to his friends. W hile the government sought to admit

these items as direct evidence of the crime, they provided the Rule 404 notice “in

an abundance of caution.” R. Doc. 43. M r. Sutherland objected to the admittance

of this evidence under Rule 404(b), though his counsel conceded that “a lot of

this stuff look[ed] like direct evidence rather than [Rule] 404(b) information.”

Tr. at 75. The district court instructed M r. Sutherland to raise his objections as

the evidence came in, and he failed to object to the evidence as it w as proffered.

Our standard of review, therefore, is for plain error only.

      The probation office calculated M r. Sutherland’s Guidelines Sentence.

Count I and II were grouped, with the highest offense level between the two being

used. The base offense level for both counts was 14. U.S.S.G. § 2G1.1(a)

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(2002). Because the offense involved force, fraud or coercion, a four-level

enhancement applied. Another two-level enhancement was added because of the

two of the girls were between 12 but not yet 16. Likewise, another two-level

enhancement was added because M r. Sutherland unduly influenced a minor to

engage in a commercial sex act. U.S.S.G. § 2G1.1(b)(4)(B). This brought the

adjusted offense level to 27. A multiple count adjustment of three-levels applied,

U.S.S.G. § 3D1.4, for a combined adjusted offense level of 30.

      The Probation Office also concluded that M r. Sutherland was a career

offender, so rather than the lower level calculated at 30, he would have a total

offense level of 37 under U.S.S.G. § 4B1.1. PSR at ¶¶ 64-66. W ith a criminal

history of IV, the Guideline range for imprisonment was 360 months to life on

count 2 and 180 months on count 1.

      M r. Sutherland objected to the PSR’s calculations (1) identifying him as a

career offender and (2) to the four-level enhancement for use of force, fraud or

coercion. The district court sustained the objection to the enhancement and

reduced his offense level by four but overruled his career offender objection so

the total offense level remained at 37. The district court determined, however,

that the career offender status over-represented M r. Sutherland’s criminal history.

Accordingly, the court sentenced M r. Sutherland to 240 months in prison. Sent.

Tr. 22-23; R. Doc. 104. This appeal followed.




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                                     Discussion

A.    Evidentiary Rulings

      Our review of a district court’s evidentiary rulings is for an abuse of

discretion. United States v. Stiger, 413 F.3d 1185, 1197 (10th Cir. 2005). One

challenging such a ruling must show that it was based on a clearly erroneous

finding of fact or an erroneous conclusion of law or manifests a clear error of

judgment. Id. Even where a district court errs in an evidentiary ruling, we must

also consider harmless error, i.e., whether the error affected substantial rights and

warrants reversal. Id.; Fed. R. Crim. P. 52(a).

      W e turn first to M r. Sutherland’s challenge to the district court’s

admittance of Sgt. Schmidt’s testimony. See Daubert v. M errell Dow Pharm.,

Inc., 509 U.S. 579 (1993). W e w ill reverse a trial court’s decision to admit expert

testimony only when that decision is manifestly erroneous. United States v.

Dazey, 403 F.3d 1147, 1171 (10th Cir. 2005). “Even if the testimony arguably

embraced the ultimate issue, such testimony is permissible as long as the expert’s

testimony assists, rather than supplants, the jury’s judgment.” Id. at 1172.

      Here, the district court cautioned the government that Sgt. Schmidt’s

testimony should not get too far afield from the facts of this case. M r. Sutherland

argues that Sgt. Schmidt testified concerning general characteristics of prostitute

recruitment and retention, some characteristics which were not present in this

case, e.g., use of affection, photographs, chemical dependency, trading

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prostitutes, and deprivation of family support. Aplt. Br. at 13. W e think it

debatable whether some of these factors were at work here. In any case, many of

the practices described by Sgt. Schmidt were involved. Narrow tailoring of this

testimony is surely best, but we must consider the overall testimony.

      The Eighth Circuit has tw ice allowed Sgt. Schmidt’s similar testimony in

juvenile prostitution cases and has noted that there is no requirement under Rule

702 that the district court always hold a Daubert hearing. See United States v.

Levron Evans, 285 F.3d 664, 669 (8th Cir. 2002); United States v. M onroe Evans,

272 F.3d 1069, 1094 (8th Cir. 2001). 1 The reasoning of that court is instructive.

Although the district court did not hold a formal Daubert hearing, it held a

hearing on M r. Sutherland’s motion in limine, where it had the opportunity to

consider Sgt. Schmidt’s qualifications and the helpfulness of his testimony to the

jury. This court also has held that a Daubert hearing is not alw ays necessary.

United States v. Nichols, 169 F.3d 1255, 1263 (10th Cir. 1999).

      W e have review ed that testimony and conclude that the district court did

not abuse its discretion. Sgt. Schmidt’s testimony about prostitution rings and the

relationships between prostitutes and their pimps, from recruitment on, was

available for the jury to assess the context and significance of the events that

occurred, viz., in assessing many facts that could bear on guilt or innocence.

      1
         W e note also that several other courts have approved similar expert
testimony in similar circumstances. See United States v. Long, 328 F.3d 655, 666
(D .C. Cir. 2003); United States v. Taylor, 239 F.3d 994, 998 (9th Cir. 2001).

                                         -6-
Similarly, the district court did not abuse its discretion in rejecting the Rule 403

argument that the danger of unfair prejudice to M r. Sutherland outweighed the

probative value of the expert’s testimony. Fed. R. Evid. 403.

      Turning now to M r. Sutherland’s objections to the “uncharged alleged

behavior” under Rules 402, 403 and 404(b), we find his objections are without

merit. M r. Sutherland’s counsel basically conceded the evidence was direct

evidence rather than Rule 404(b) evidence. Tr. at 75. Our standard of review is

for plain error only. Although the district court instructed M r. Sutherland to raise

his objections as the trial w ent along, those objections w ere not raised. Plain

error must be so egregious as to result in a miscarriage of justice. United States

v. Visinaz, 428 F.3d 1300, 1311 (10th Cir. 2005). In order to warrant reversal,

M r. Sutherland must demonstrate that there was “(1) error, (2) that is plain, and

(3) that the error affects substantial rights.” Id. at 1308. M r. Sutherland cannot

meet that burden here because the evidence was both direct and relevant, and thus

the court did not even need to reach its admissibility under Rule 404(b).

B.    Sufficiency of the Evidence

      W e review de novo the district court’s determination that there was

sufficient evidence to convict. United States v. Bush, 405 F.3d 909, 919 (10th

C ir. 2005). In review ing the denial of a motion for a judgment of acquittal, we

view the evidence in the light most favorable to the government and determine

whether there was sufficient evidence from which a jury could find a defendant

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guilty beyond a reasonable doubt. United States v. Johnson, 120 F.3d 1107, 1108

(10th Cir. 1997).

      M r. Sutherland asks us to review the record in the absence of the evidence

he has challenged above. But this evidence was properly admitted, and thus the

district court properly considered it in denying M r. Sutherland’s Rule 29 motion

for judgment of acquittal. Regardless, the testimony of M .S. and A.K. was

sufficient for a jury to infer that M r. Sutherland intended to, and did, prostitute all

three girls. Viewed in the light most favorable to the government, that testimony

revealed, inter alia, that M r. Sutherland showed the minor girls pictures of

prostitutes, dyed their hair blonde, provided them with drugs and clothes suitable

for prostitution, told them they would have to “hit the block,” had sexual relations

with J.M and M .S., prostituted the girls at a truck stop, and forced them to

perform sexual acts on his friends. This testimony alone w as sufficient for a jury

to find M r. Sutherland guilty.

      M r. Sutherland argues that M .S. testified that M r. Sutherland displayed no

knowledge or intent as charged, and a judgment of acquittal was necessary. W e

disagree. A reasonable jury could infer from her testimony that M r. Sutherland’s

intent was quite clear. M r. Sutherland also argues that A.K.’s testimony was

insufficient because it contradicted her grand jury testimony. Credibility,

however, w as a determination for the jury.




                                          -8-
C.    Sentencing

      W e review a district court’s factual findings in sentencing for clear error

and the legal interpretations of the advisory United States Sentencing Guidelines

(“G uidelines”) de novo. United States v. W olfe, 435 F.3d 1289, 1295 (10th Cir.

2006). W e review M r. Sutherland’s objections under U nited States v. Booker,

543 U.S. 220 (2005), for harmless error. The record indicates that the district

court applied the Guidelines in a advisory fashion, as Booker requires. Indeed,

the district court exercised the afforded discretion to depart downward. In

addition, M r. Sutherland argues that the district court relied on the context of the

overall Stormy Nights investigation to arrive at his sentence, and that these facts

were not presented, let alone proven, to the jury. The record reflects that the

district court considered this portion of the PSR to be “important background

information” but there is no evidence that these facts influenced the sentencing

decision.

      M r. Sutherland presented no objection under Crawford v. W ashington, 541

U.S. 36 (2004) to the district court, nor does he argue on appeal how the district

court committed plain error in not raising this issue sua sponte. M erely claiming

prejudice is not enough. He has waived the issue. See United States v. Solomon,

399 F.3d 1231, 1237-38 (10th Cir. 2005).




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A FFIR ME D.

               Entered for the Court



               Paul J. Kelly, Jr.
               Circuit Judge




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