United States v. Allen Mark Levinson
504 F. App'x 824
11th Cir.2013Background
- Levinson was convicted in the district court of two federal counts: using a computer to persuade a minor (18 U.S.C. § 2422(b)) and, as a registered sex offender, committing a felony involving a minor (18 U.S.C. § 2260A).
- The district court denied Levinson’s motion to sever the counts; he challenged multiple evidentiary rulings on appeal.
- Evidence admitted included hundreds of online chats involving sex with minors, real and virtual child pornography, a 1998 sexual abuse conviction, and alleged past sexual abuse of his daughter.
- The court conducted a Daubert hearing and excluded Levinson’s proposed expert on human sexuality; other evidence was admitted with limiting instructions.
- Settlement of Levinson’s daughter’s civil lawsuit against him was admitted (Rule 408 issue), and Levinson challenged Confrontation Clause implications, but mistrial was denied.
- The Eleventh Circuit affirmed, holding the charges were properly joined, evidentiary rulings were not reversible error, no improper Florida-law instruction occurred, and the sentence was not grossly disproportionate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Severance of counts warranted? | Levinson | Levinson | No; counts properly joined; no compelling prejudice. |
| Admissibility of prior acts (Rule 404(b)/414) | Levinson’s prior chats and child-porn evidence show intent/likelihood | Admissible to prove disposition and intent; limited use | Admissible; harmless error given overwhelming guilt. |
| Admission of Levinson’s 1998 conviction and daughter's alleged abuse | Levinson | Admissible under Rules 404(b) and 414 | Admissible; harmless given overwhelming evidence. |
| Expert testimony admissibility (Daubert) | Levinson’s expert should be allowed | Klein’s methodology unreliable | District court did not abuse; Klein excluded. |
| Settlement of civil claims under Rule 408 | Levinson | Evidence limited to bias/other permissible purposes | Harmless error; not reversible. |
| Confrontation Clause / Crawford error | Plain error to admit testimonial hearsay | Not preserved; failure not plain error | No plain error; curative instruction cured potential issue. |
| Jury instructions on Florida law | Misstatement risk | Instruction correctly avoided Florida-law elements | No reversible error; instructions cured. |
| Proportionality under Eighth Amendment | Sentence grossly disproportionate | Within statutory range | Not grossly disproportionate; sentence affirmed. |
Key Cases Cited
- United States v. Hersh, 297 F.3d 1233 (11th Cir. 2002) (two-step joinder/severance analysis; Rule 8(a) and Rule 14)
- United States v. Walser, 3 F.3d 380 (11th Cir. 1993) (prejudice needed for reversal; cautionary instruction may suffice)
- United States v. Ramirez, 426 F.3d 1344 (11th Cir. 2005) (jury instructed to follow limiting instructions; harmless error)
- United States v. Arias, 431 F.3d 1327 (11th Cir. 2005) (Rule 404(b) admissibility; bias/impeachment context)
- United States v. Phaknikone, 605 F.3d 1099 (11th Cir.) (harmless error and consideration of overwhelming guilt)
- United States v. Frazier, 387 F.3d 1244 (11th Cir. 2004) (Daubert standard for expert testimony (en banc))
- Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999) (reliability of expert testimony; general admissibility standard)
- Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) (general reliability standard for expert testimony)
- Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause; testimonial hearsay limits)
- United States v. Chau, 426 F.3d 1318 (11th Cir. 2005) (plain error review when Crawford not preserved)
- United States v. Perez, 30 F.3d 1407 (11th Cir. 1994) (mistrial decision and prejudicial testimony; discretion)
- United States v. Johnson, 451 F.3d 1239 (11th Cir. 2006) (Eighth Amendment proportionality threshold)
- United States v. Farley, 607 F.3d 1294 (11th Cir. 2010) (Eighth Amendment proportionality analysis)
- United States v. Lyons, 403 F.3d 1248 (11th Cir. 2005) (narrow proportionality review)
- United States v. Richardson, 233 F.3d 1285 (11th Cir. 2000) (jury charge accuracy; standard of review)