United States v. Redd

81 F.4th 822

UNITED STATES of America, Plaintiff - Appellee v. Darrius Decnan REDD, Defendant - Appellant

No. 22-1676

United States Court of Appeals, Eighth Circuit

Submitted: June 15, 2023

Filed: September 5, 2023

Appeal from United States District Court for the Southern District of Iowa

Counsel who presented argument on behalf of the appellant and appeared on the appellant's brief, was Gina Messamer, of Des Moines, IA.

Counsel who presented argument on behalf of the appellee and appeared on the appellee's brief, was Amy L Jennings, AUSA, of Des Moines, IA. The following attorney(s) also appeared on the appellee's brief; Kyle J. Essley, AUSA, of Des Moines, IA.

Before GRUENDER, KELLY, and GRASZ, Circuit Judges.

GRASZ, Circuit Judge.

A jury convicted Darrius Redd of sex trafficking, facilitating prostitution, and distributing a controlled substance to a person under twenty-one years old. On appeal, Redd argues he is entitled to a new trial on two of the three counts because the district court¹ made evidentiary errors and the government deprived him of a fair trial. We affirm.

I. Background

A jury found Redd guilty of sex trafficking by force, fraud, or coercion, 18 U.S.C. § 1591(a)(1) and (b)(1); facilitating prostitution, 18 U.S.C. § 1952(a)(3)(A); and distributing methylenedioxymethamphetamine ("MDMA") to a person under twenty-one, 21 U.S.C. §§ 841(a)(1) and 859. Most relevant for this appeal, the government relied on evidence related to the trafficking of A.E. who, at the time, was a college student and under twenty-one. According to the indictment, Redd trafficked A.E. between approximately February 2 and March 14, 2020.

A.E. testified at trial and recounted the following. On or about February 2, sometime after midnight, A.E. met Redd at a gas station in Iowa. A.E. gave Redd her phone number and social media information, and Redd gave A.E. the drug commonly known as "molly."² A.E. believed Redd's name was "Shawn Cory" because of his social media profile.

A month later, in the early morning on March 3, Redd visited A.E.'s sorority house after insisting he "needed to meet up with" her and that "it wouldn't take that long." Shortly after he arrived, Redd suggested A.E. use the molly he brought with him. A.E. eventually agreed. The drug made her feel "very relaxed" and "talkative." Using a cell phone, Redd openly recorded A.E. while asking her personal questions, including about her family and sexual history. The encounter turned sexual, and Redd recorded A.E. and himself having sex.

At some point on March 3, Redd proposed to A.E. that she could make money as a prostitute, but first she had to pay back a "debt" she owed Redd for helping her prostitute. Before A.E. began working with Redd, he warned her that she did not "want to know the consequences" if she had sex with anyone "he didn't approve of," meaning she could only have sex with people who were giving her money in exchange. While Redd told A.E. he made money "off of other girls that were having sex for him," he also told her that he sold or abused the women who worked for him if they did not "do what he wanted them to."

Later that same day, Redd scheduled appointments for A.E. to prostitute herself. After driving A.E. to meet with two clients, Redd took the money she received. By this point, Redd made A.E. share her location with him via a social media application. A.E. was eager to "help" Redd by, for example, texting him about her new "goals" to earn more money in part because she was afraid Redd could retaliate against her by releasing the videos from the sorority house.

Redd continued to drive her to and from prostitution encounters, and he collected all of the money. On March 7, Redd forced her to have sex with him. And on March 8, A.E. "kind of protest[ed]" Redd's sexual advances, but he told her she was going to have sex with him anyway. Later that evening, Redd had a contentious encounter with one of A.E.'s clients, which led to police officers asking A.E. some questions. When Redd found out that A.E. spoke with the police, he became "very aggressive" and told her via text message that she was "going to regret this." Redd had A.E.'s wallet, as well as videos and pictures of her, so A.E. "tried to reassure him" that she had not told the police anything. Redd agreed to eventually return her wallet.

When Redd visited A.E. at her sorority house on March 12, he did not bring her wallet. While Redd told A.E. he wanted to talk, he instead drove A.E. to a hotel, gave her drugs and alcohol that she consumed, and told her that she "was going to make money." While A.E. "was on a lot of molly," she and Redd had a sexual encounter. The encounter devolved into Redd holding A.E.'s arms down and urinating in her mouth. On March 13 and 14, A.E. engaged in prostitution with more clients. And on March 14, Redd drove A.E. back to her sorority house so that her mother could pick her up for spring break.

Redd continued to contact A.E. through text messages. He texted A.E. that he had "voicemails of [her] admitting to prostituting" and that she had "told [him] everything about everything." Redd also texted her, "[w]hen you least expect so always expect," and "[y]ou can get touched right now this moment hoe." Redd's texts became more explicit, claiming A.E. owed him $30,000 and that he "recorded everything," including her sexual interactions with him and others. He wrote, "Cash app. Clear your debt. Or . . . ." (ellipsis in original).

Redd testified at trial in his defense. Redd acknowledged he had sex with A.E. on multiple occasions, agreed to set up an online escort account for A.E., and drove A.E. around to meet with clients. But he insisted A.E. voluntarily participated in all of this. Redd also testified he did not keep all of the money A.E. earned and never gave her a controlled substance. Redd told the jury that, between March 3 and 14, he never suggested to A.E. that he would use the videos of their sexual interactions to embarrass or extort her.

Despite Redd's testimony, the jury found him guilty of sex trafficking by force, fraud, or coercion; facilitating prostitution; and distributing MDMA to a person under twenty-one years old. The district court sentenced Redd to forty-five years in prison.

II. Analysis

Redd asks us to reverse and remand for a new trial on two of the three counts: sex trafficking and distributing MDMA. In support, Redd argues the district court erred by excluding videos of his initial sexual encounter with A.E. and by admitting expert testimony. He also argues the government deprived him of a fair trial when it cross-examined him and during its closing argument.

A. Exclusion of Evidence

Before trial, Redd sought to admit videos of his and A.E.'s initial sexual encounter at the sorority house to undermine the government's theory that he used force, fraud, or coercion to cause A.E. to engage in a commercial sex act. The district court excluded the videos in their entirety under Rules 401, 402, 403, and 412 of the Federal Rules of Evidence. On appeal, Redd challenges the district court's ruling under the Federal Rules of Evidence and the Constitution. We review evidentiary rulings for abuse of discretion. United States v. Schave, 55 F.4th 671, 677 (8th Cir. 2022). Our review, however, is de novo when an evidentiary ruling implicates a constitutional right. United States v. Walker, 917 F.3d 1004, 1008 (8th Cir. 2019).

We begin with Redd's arguments grounded in the Federal Rules of Evidence. Broadly, he argues the district court erred because the videos—in their entirety—were necessary to show A.E. and Redd had a consensual sexual relationship, A.E.'s sexual preferences, and A.E.'s consent to prostitute herself. First, Redd challenges the application of Rule 412 to exclude the videos, claiming the videos fall under the limited exception for evidence of a victim's sexual behavior. He also characterizes the videos as "intrinsic," arguing admission of the evidence would have allowed the jury to reject A.E.'s "testimony that she did not consent to Redd's allegedly forceful conduct in later sexual encounters."

Under Rule 412, "[t]he following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct: (1) evidence offered to prove that a victim engaged in other sexual behavior; or (2) evidence offered to prove a victim's sexual predisposition." Fed. R. Evid. 412(a). In a criminal case, however, a "court may admit . . . evidence of specific instances of a victim's sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent[.]" Fed. R. Evid. 412(b)(1)(B). Here, Redd was charged with using force, fraud, or coercion to cause A.E. to engage in a commercial sex act. In this way, a video that displays a victim's initial sexual encounter with a defendant does not prove the victim's consent to later exchange money for sex with someone else.³ Cf. United States v. Roy, 781 F.3d 416, 420 (8th Cir. 2015) ("At issue here is not recruiting an individual to engage in commercial sex for the first time, but doing an act with the use of force, threats, fraud, or coercion to cause the victim to engage in commercial sex.").

Even if the videos were admissible under Rule 412, we see no reason to disturb the district court's exclusion under Rule 403. See United States v. Pumpkin Seed, 572 F.3d 552, 558-59 (8th Cir. 2009). Under Rule 403, a "court may exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice[.]" Fed. R. Evid. 403. "Unfair prejudice means an undue tendency to suggest decision on an improper basis, including evidence which is so inflammatory on its face as to divert the jury's attention from the material issues in the trial." Schave, 55 F.4th at 678 (quoting United States v. Richardson, 40 F.4th 858, 867 (8th Cir. 2022)). We afford great deference to a district court's balancing under Rule 403 "of the...