            Case: 11-13268   Date Filed: 01/04/2013   Page: 1 of 13

                                                           [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________

                              No. 11-13268
                          Non-Argument Calendar
                        ________________________

                    D.C. Docket No. 9:10-cr-80166-KLR-1


UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

           versus

ALLEN MARK LEVINSON,

                                                           Defendant-Appellant.

                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                        ________________________
                              (January 4, 2013)

Before HULL, EDMONDSON and BLACK, Circuit Judges.


PER CURIAM:

     Allen Mark Levinson appeals his convictions and total sentence of 480
                    Case: 11-13268       Date Filed: 01/04/2013     Page: 2 of 13

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).

                                                   2
              Case: 11-13268     Date Filed: 01/04/2013    Page: 3 of 13

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

                                           3
              Case: 11-13268     Date Filed: 01/04/2013   Page: 4 of 13

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.

                                          4
              Case: 11-13268     Date Filed: 01/04/2013    Page: 5 of 13

                                          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

                                           5
              Case: 11-13268     Date Filed: 01/04/2013    Page: 6 of 13

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.



                                           6
               Case: 11-13268    Date Filed: 01/04/2013   Page: 7 of 13

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

                                          7
              Case: 11-13268     Date Filed: 01/04/2013    Page: 8 of 13

(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).




                                           8
               Case: 11-13268       Date Filed: 01/04/2013   Page: 9 of 13

                                           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,

                                             9
              Case: 11-13268      Date Filed: 01/04/2013    Page: 10 of 13

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.

                                            10
             Case: 11-13268      Date Filed: 01/04/2013    Page: 11 of 13



                                          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



                                           11
             Case: 11-13268    Date Filed: 01/04/2013   Page: 12 of 13

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

                                         12
             Case: 11-13268     Date Filed: 01/04/2013    Page: 13 of 13

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.




                                          13
