United States v. Murry Malone Bailey, 778 F.3d 1198

Murry Bailey was convicted after a bench trial of sexual exploitation of a child (18 U.S.C. § 2251(a)) and possession of child pornography (18 U.S.C. § 2252A(a)(5)(B)).
The district court found Bailey videotaped a minor (S.C.) after leaving notes instructing when and where to masturbate, gave her money to induce masturbation, and was heard urging her to hurry on a recording.
The indictment contained five counts: Counts 1–4 charged distinct videos (Government exhibits 1–4) during overlapping time frames; Count 5 charged possession of child pornography on a specified laptop and two videotapes during a stated period.
Bailey first raised on appeal that the indictment was insufficiently specific (both as to which videos corresponded to counts and as to Count Five’s identification of images), and separately argued insufficient evidence supported Count Four because exhibit 4 did not show actual masturbation.
The Eleventh Circuit reviewed the indictment challenge for plain insufficiency (first raised on appeal) and reviewed sufficiency of evidence de novo, viewing facts in the light most favorable to the Government.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of indictment for Counts 1–4	Counts identical except timeframes; overlap deprived Bailey of notice and double jeopardy protection	Bailey knew before trial which exhibit corresponded to each count and exhibits were distinctive	Indictment sufficient; no actual prejudice shown; double jeopardy protection preserved
Sufficiency of indictment for Count 5	Count 5 failed to identify the specific image charged	Bailey had viewed the images pretrial and the indictment identified the laptop and two videotapes introduced at trial	Indictment sufficient; Bailey had ample notice and could invoke double jeopardy later
Sufficiency of evidence on Count 4 (§ 2251(a))	Exhibit 4 did not show S.C. actually masturbating; statute requires actual sexual conduct depiction	The statute criminalizes employing/inducing/enticing a minor to engage in sexually explicit conduct to produce a visual depiction; inducement need not be successful; recordings and other evidence show inducement	Evidence sufficient; conviction affirmed — inducing/enticing to masturbate satisfies § 2251(a) even if act not clearly completed

United States v. Pena, 684 F.3d 1137 (11th Cir. 2012) (standards for reviewing indictment challenges raised for first time on appeal)
United States v. Adams, 83 F.3d 1371 (11th Cir. 1996) (no reversal where defendant suffered no actual prejudice from indictment defects)
United States v. Doe, 661 F.3d 550 (11th Cir. 2011) (de novo review of sufficiency of the evidence)
United States v. Maxwell, 579 F.3d 1282 (11th Cir. 2009) (standard for sufficiency of evidence in criminal convictions)
United States v. Robertson, 493 F.3d 1322 (11th Cir. 2007) (evidence need not exclude every reasonable hypothesis of innocence)