                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 20 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-30080

                Plaintiff-Appellee,             D.C. No.
                                                2:15-cr-00175-RSL-1
 v.

DAVID D. DELAY,                                 MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Western District of Washington
                    Robert S. Lasnik, District Judge, Presiding

                    Argued and Submitted December 12, 2019
                              Seattle, Washington

Before: HAWKINS and McKEOWN, Circuit Judges, and PRATT,** District
Judge.

      Appellant David D. Delay timely appeals his jury conviction of conspiracy

to engage in sex trafficking by force, 18 U.S.C. §§ 1591(a)(1), 1594(c); attempted

sex trafficking of a juvenile by force, fraud, and coercion, §§ 1591(b), 1594(a); sex



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Robert W. Pratt, United States District Judge for the
Southern District of Iowa, sitting by designation.
trafficking of an adult by force, fraud, and coercion, § 1591(a); transportation for

the purpose of prostitution, § 2421; transportation for the purpose of prostitution

through coercion and enticement, § 2422(a); two counts of production of child

pornography, § 2251; and one count of obstruction and interference with sex-

trafficking enforcement, § 1591(d). We affirm.

      1.     Because Delay makes no showing of resulting prejudice, his claim

that the district court abused its discretion in denying his sixth continuance fails.

United States v. Zamora-Hernandez, 222 F.3d 1046, 1049 (9th Cir. 2000).

      2.     Circuit precedent forecloses Delay’s contention that the indictment

contained multiplicitous counts in charging violations of both § 2421 and § 2422.

United States v. Taitano, 442 F.2d 467, 469 (9th Cir. 1971).

      3.     Delay challenges his § 1591(d) conviction, arguing the Government

offered insufficient evidence that he knew he would interfere with a federal

investigation when he asked his federal codefendant to withdraw her federal guilty

plea despite a federal no-contact order. To the extent the Government must prove

such knowledge, a rational juror could have found it here. See United States v.

Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010). Delay’s argument that § 1591(d) is

unconstitutionally vague as applied fails, too, because a defendant whose “actions

clearly come within the statute . . . cannot make a void for vagueness challenge.”

United States v. Jae Gab Kim, 449 F.3d 933, 942 (9th Cir. 2006).


                                           2                                     18-30080
      4.     Delay argues that limits on his cross-examination of certain

government witnesses’ past acts violated his Confrontation Clause rights. But the

district court did not abuse its discretion by limiting the scope of cross-examination

within a given area here. See United States v. Larson, 495 F.3d 1094, 1101 (9th

Cir. 2007) (en banc).

      5.   Contrary to Delay’s contention, the jury instructions were not flawed.

First, the district court did not plainly err by not giving a diminished-capacity

instruction. See United States v. Montgomery, 150 F.3d 983, 996 (9th Cir. 1998).

Further, Delay did not (1) seek such an instruction, (2) present such a defense, or

(3) show how any mental illness affected his “ability to attain the culpable state of

mind which defines the crime[s].” 1 United States v. Christian, 749 F.3d 806, 815

(9th Cir. 2014) (quoting United States v. Twine, 853 F.2d 676, 678 (9th Cir.

1988)). Second, a district court has “substantial latitude” when tailoring jury

instructions, United States v. Marsh, 26 F.3d 1496, 1502 (9th Cir. 1994), including

whether to emphasize certain offense elements over others, United States v.




      1
        We decline to address Delay’s argument that his trial counsel rendered
ineffective assistance because it was not raised in Delay’s opening brief, see
United States v. Romm, 455 F.3d 990, 997 (9th Cir. 2006), and in any event is
better suited for collateral review, see United States v. Benford, 574 F.3d 1228,
1231 (9th Cir. 2009).

                                           3                                    18-30080
Peppers, 697 F.3d 1217, 1221 (9th Cir. 2012), and Delay has shown no reversible

error regarding the jury instruction defining “coercion” with respect to § 1591.2

      AFFIRMED.




      2
       We deny the Government’s motion to strike portions of Delay’s reply brief
as moot.

                                         4                                    18-30080
