United States of America v. David D. Delay

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID D. DELAY,
Defendant-Appellant.
No. 18-30080
D.C. No.
2:15-cr-00175-RSL-1
MEMORANDUM*
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.
FILED
DEC 20 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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).

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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).

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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.

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