                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 14 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-10206
                                                       18-10275
                Plaintiff-Appellee,
                                                D.C. No.
 v.                                             2:15-cr-00005-TLN-1

STEEL A. DAVIS,
                                                MEMORANDUM*
                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Eastern District of California
                    Troy L. Nunley, District Judge, Presiding

                    Argued and Submitted November 14, 2019
                            San Francisco, California

Before: WARDLAW, W. FLETCHER, and LINN,** Circuit Judges.

      Steel Davis, a National Guard veteran, appeals from his conviction on several

counts of wire fraud related to the National Guard’s recruitment incentive program

(“G-RAP”). Davis challenges several of the district court’s evidentiary rulings. We

affirm.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Richard Linn, United States Circuit Judge for the U.S.
Court of Appeals for the Federal Circuit, sitting by designation.
         The district court did not plainly err by not excluding the contested testimony

of recruits Crystal Ackerman, Anton Jensen, Daniel Stuart, Eric Tullius, and Jaren

Blair.    Each witness recounted statements by Davis that either increased the

likelihood that the recruit would choose to enlist or decreased the likelihood that he

or she would be rejected by the National Guard. Both results increased the likelihood

of a G-RAP award.          The testimony of these recruits was thus “inextricably

intertwined” with the charged scheme and is not inadmissible under Federal Rule of

Evidence 404. United States v. Vizcarra-Martinez, 66 F.3d 1006, 1012–13 (9th Cir.

1995) (holding that evidence that “constitutes a part of the transaction that serves as

the basis for the criminal charge” or is “necessary . . . in order to permit the

prosecutor to offer a coherent and comprehensible story regarding the commission

of the crime” is “inextricably intertwined”).

         Davis’s assertion that he would have made these statements even without a

fraudulent G-RAP scheme in order to satisfy his duties as a recruiter does not

undermine the admissibility of the statements. Whether Davis’s statements were

legitimately part of his recruiter duties or were made in furtherance of the fraudulent

scheme was a factual question for the jury, not an evidentiary one.

         Similarly, recruit Bryan Gregory’s account of Davis’s attempt to enlist him

into the G-RAP fraud is inextricably intertwined with the charged scheme. Those

statements were made in furtherance of the scheme “in the course of the conduct


                                            2
with which [Davis] was charged.” See United States v. Ramirez-Jiminez, 967 F.2d

1321, 1327 (9th Cir. 1992). Whether Gregory actually engaged in the fraud with

Davis is of no moment. See, e.g., United States v. Sayakhom, 186 F.3d 928, 937–38

(9th Cir. 1999), amended by 197 F.3d 959 (9th Cir. 1999) (allowing evidence of

uncharged unlawful activity of a company under a new name as evidence of the

knowledge of the illegality of the charged conduct under a different name); United

States v. Serang, 156 F.3d 910, 915 (9th Cir. 1998) (allowing, in a mail fraud case,

evidence of a co-conspirator’s prior unsuccessful attempts to set fire to a restaurant).

      The statement to Recruiter Zane Lowrey is distinct because it was referring to

a G-RAP fraud with which Davis was not involved. Davis’s perspective on how

fraudulent earnings should be distributed is not direct evidence of Davis’s

involvement in the charged scheme. Davis’s statement to Lowrey also did not

provide context necessary for the prosecution to make its case. Nevertheless, the

admission of Lowrey’s testimony was not plain error. This is not the kind of

statement that “is so clear-cut, so obvious, [that] a competent district judge should

be able to avoid it without benefit of objection.” United States v. Ching Tang Lo,

447 F.3d 1212, 1228 (9th Cir. 2006). Moreover, there is no plain error when “there

is no significant possibility that the jury might have acquitted the defendant[]” had

the evidence not been admitted. United States v. Soto-Barraza, __ F.3d __, 2020

WL 253560, at *6 (9th Cir. 2020). There is overwhelming evidence to support


                                           3
Davis’s conviction, including: the testimony of Davis’s co-conspirators Kaps,

Nattress, and Hair; testimony by fifteen nominees that they gave Davis their personal

identifying information and did not know the co-conspirators who claimed them for

G-RAP; and the pattern of Davis’s spending, corresponding to withdrawals from his

co-conspirators’ accounts.

      There is no merit to Davis’s cursory contention that the above statements

should have been excluded under Rule 403 balancing. See FED. R. EVID. 403. Not

excluding these statements was well within the district court’s discretion.

      Davis next challenges the admission of statements he made to the

California Highway Patrol on November 27, 2009. The impeachment testimony

here is properly analyzed under Rule 609, not Rule 608. See United States v.

Osazuwa, 564 F.3d 1169, 1174 (9th Cir. 2009) (“[E]vidence relating to convictions

falls within the exclusive purview of Rule 609.”); id. at 1175 (“[W]e hold that Rule

608(b) permits impeachment only by specific acts that have not resulted in a criminal

conviction. Evidence relating to impeachment by way of criminal conviction is

treated exclusively under Rule 609.”).

      Under Rule 609, “[a]bsent exceptional circumstances, evidence of a prior

conviction admitted for impeachment purposes may not include collateral details

and circumstances attendant upon the conviction.” Id. at 1175 (quoting United

States v. Sine, 493 F.3d 1021, 1036 n. 14 (9th Cir. 2007)); see also FED. R. EVID.


                                          4
609. The prosecutor’s questions, while not revealing Davis’s criminal conviction,

relate to the collateral details thereof and normally would be inadmissible under Rule

609. Nevertheless, the district court’s failure to exclude this line of questioning was

not plain error. Because the jury did not hear that Davis was subject to a criminal

conviction for the November 27 incident, the challenged colloquy amounted to no

more than Davis’s denying he lied to the police. This is the type of evidence that

otherwise is generally admissible. Again, we cannot say that admitting this

evidence was “so obvious[] [that] a competent district judge should be able to

avoid it without benefit of objection.” See Ching Tang Lo, 447 F.3d at 1228.

Moreover, the concern addressed in Osazuwa about double prejudice is not

present here. See Osazuwa, 564 F.3d at 1174 (explaining that inquiry into “a

bad act resulting in a conviction would be, in a sense, counted twice—once by

presenting the bad act itself and once by presenting the conviction that flowed

from it”).

      Davis also challenges the lack of a limiting jury instruction on impeachment

evidence. But this is not the rare case where an erroneous jury instruction would

justify a finding of plain error. See United States v. Armijo, 5 F.3d 1229, 1232 (9th

Cir. 1993) (“Improper jury instructions will rarely justify a finding of plain error.”).

As discussed, the testimony of the potential recruits about Davis’s statements to

them are not impeachment evidence—they are direct evidence of Davis’s


                                           5
involvement in the charged scheme.      The statement to Lowrey also was not

impeachment evidence. In each instance Davis merely denied being untruthful and

the prosecutor accepted his denials without more.   No limiting jury instruction on

impeachment evidence was necessary.

      Finally, Davis argues cumulative error. For the same reasons noted, supra,

this argument has no merit.

      AFFIRMED.




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