United States v. Damion Lundy
2012 U.S. App. LEXIS 6315
5th Cir.2012Background
- Lundy, 23, contacted a girl he believed to be 15, who was an undercover officer, via text and calls and agreed to meet for sex.
- He was arrested at the meeting location while on the phone with the officer and was convicted under 18 U.S.C. §2422(b) for using interstate facilities to entice a minor.
- The indictment charged that Lundy attempted to persuade and entice a 15-year-old to engage in sexual activity; the government proceeded after a hung jury in the first trial.
- Lundy argued insufficiency of the evidence, a constitutionally flawed jury instruction alleged as a constructive amendment, exclusion of an expert as a discovery sanction, improper authentication of chats and texts, and hearsay issues.
- The district court admitted evidence and instructed the jury as to the elements of attempting to persuade, induce, or entice a minor to engage in unlawful sexual activity; the jury convicted in the second trial.
- The Fifth Circuit affirmed all aspects of Lundy’s conviction and rejected each challenge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of the evidence for the charged offense | Lundy claims no Mississippi statutory rape analogue; factual impossibility defenses. | Lundy asserts insufficiency in inducement and knowledge of age. | Sufficient evidence supported the offense and intent under Farner standard. |
| Jury instruction and factual impossibility | Instruction impermissibly encompassed implied Mississippi attempted statutory rape. | Instruction correctly framed as federal attempt to entice minor under Mississippi law. | Instruction proper; no reversible error under Farner. |
| Exclusion of expert witness as discovery sanction | Exclusion violates Sixth Amendment and is overly harsh. | Sanction appropriate; no abuse of discretion. | Sanction not reversible error; permissible under Taylor/related precedent. |
| Authentication of chats and Camtasia videos | Authenticity and integrity of chats/videos insufficient. | Giroux’s testimony and viewing procedures sufficient for authentication. | Authentication found adequate; admission proper. |
| Hearsay and background testimony about Jarious Johnson | Officer Spand’s remarks about the name Jarious Johnson are hearsay. | Testimony constitutes background information not offered for truth. | Not hearsay; admissible as non-assertive investigative background. |
Key Cases Cited
- United States v. Farner, 251 F.3d 510 (5th Cir. 2001) (defining factual impossibility and two-element test for attempts)
- United States v. Restrepo, 994 F.2d 173 (5th Cir. 1993) (standard for reviewing sufficiency of evidence (jury must view evidence in light favorable to verdict))
- United States v. Sanchez, 961 F.2d 1169 (5th Cir. 1992) (sufficiency review framework for conviction based on circumstantial evidence)
- United States v. Asibor, 109 F.3d 1023 (5th Cir. 1997) (reaffirming sufficiency standard and evidentiary review)
- United States v. Williams, 264 F.3d 561 (5th Cir. 2001) (sufficiency review clarifications; jury credibility and inference safety)
- United States v. Duncan, 919 F.2d 981 (5th Cir. 1990) (conflicts in evidence resolved in favor of jury verdict)
- Taylor v. Illinois, 484 U.S. 400 (1988) (sanctions and the defendant’s right to present witnesses; discretion of trial court)
- United States v. Jackson, 636 F.3d 687 (5th Cir. 2011) (standard for evaluating authentication of chat/text evidence)