UNITED STATES of America, Plaintiff-Appellee, v. Theodore R. HARMON, Defendant-Appellant.
No. 13-4365.
United States Court of Appeals, Sixth Circuit.
Nov. 21, 2014.
589 Fed. Appx. 455
Beard is mistaken.
If a party files a notice of appeal after the court announces or enters a judgment—but before it disposes of any motion listed in Rule 4(a)(4)(A)—the notice becomes effective to appeal a judgment or order, in whole or in part, when the order disposing of the last such remaining motion is entered.
The qualifying motions listed in
III.
For the reasons stated above, the district court is AFFIRMED in all respects.
OPINION
BERNICE BOUIE DONALD, Circuit Judge.
Theodore R. Harmon (“Harmon“) appeals his jury conviction and sentence pursuant to
I.
In 2012, the Department of Homeland Security (“DHS“) began investigating Harmon after he posted a personal ad on the website www.motherless.com, seeking an 18- to 24-year-old woman for a sexual encounter involving a dominance and submission relationship and daddy-daughter role play. Michael Spadafora (“Agent Spadafora“), an undercover DHS agent based in Florida, responded to Harmon‘s ad while posing as the father of a fictitious 14-year-old girl named Brooke. Agent Spadafora asked whether Harmon was “interested in young” and would like to meet him and his “daughter” on their upcoming trip to Ohio. PageID 629-30. Harmon responded that he had “had sex with a lot of underage girls... but they were all willing and loved it.” PageID 653. The following week, Harmon and Agent Spadafora communicated through emails, chatrooms, text messages, and phone calls. In the course of those communications, Harmon expressed concern about encountering undercover police officers and mentioned that he had been caught in a sting operation previously and feared being caught again. Harmon also advised Agent Spadafora how to disguise communications about having sex with minors in order to avoid being caught.
Though he was communicating only with Agent Spadafora, Harmon was very interested in “Brooke‘s” thoughts, preferences, and feedback. For example, Harmon inquired about “Brooke‘s” sexual preferences and discussed various sex acts he wanted to perform with her. Harmon asked for pictures of “Brooke” in her underwear and sent a nude photo of himself to Agent Spadafora to show his “daughter.” Harmon repeatedly asked about “Brooke‘s” response to his photo and whether she liked it. He also asked whether “Brooke” drank alcohol and learned that “father” and “daughter” both liked Coors Light beer, which Harmon offered to bring when they met. Harmon asked Agent Spadafora if he should take “Brooke” out to dinner and spend a whole night with her. Harmon reassured Agent Spadafora that his “daughter” would be in experienced, safe, and disease-free hands.
Harmon eventually arranged a meeting for March 14, 2012, with Agent Spadafora at the Knights Inn motel in Rossford, Ohio. On the day of the meeting, Agent
On April 4, 2012, an indictment was returned charging Harmon with using a facility or means of interstate commerce to attempt to knowingly persuade, induce, or entice an individual, who he believed was 14 years old, to engage in sexual activity under circumstances which would constitute a criminal offense in the State of Ohio, in violation of
Harmon pled not guilty and moved to suppress statements he made to officers when arrested. An evidentiary hearing was held, and the court denied the motion to suppress. Harmon subsequently filed a motion to dismiss the indictment, which was denied. Harmon then filed a motion in limine asking that any reference to a prior criminal record be excluded, which the Government agreed to. He also asked the court to exclude the contents of the bag that was seized at the time of his arrest. The court denied the motion in limine without prejudice.
Following a jury trial held on May 29 and 30, 2013, Harmon was found guilty of the sole count charged. The presentence report (“PSR“) noted that the mandatory minimum term for a conviction under
On November 7, 2013, a timely notice of appeal was filed in this Court. Subsequently, Harmon filed a separate pro se notice of appeal on November 15, 2013, which was dismissed as a duplicate on November 26, 2013. We consider each of Harmon‘s arguments in turn.
II.
Harmon‘s first argument is that the district court improperly admitted (1) evidence of his statements that he had prior sexual experience with underage girls, and (2) contents of the overnight bag found in his car at the time of his arrest. We review the admissibility of evidence for abuse of discretion. United States v. Cecil, 615 F.3d 678, 688 (6th Cir. 2010); United States v. Blackwell, 459 F.3d 739, 752 (6th Cir. 2006).
A.
In the course of his communications with Agent Spadafora, Harmon stated that he had “had sex with a lot of underage girls... but they were all willing and loved it.” PageID 653. Harmon also stated that he had sex with an underage girl for six months with the consent of
The record shows that Harmon‘s statements about prior sexual experience with minors were admitted as evidence of Harmon‘s state of mind with respect to the charged offense and not as prior bad acts. When Harmon‘s statements were presented at trial, Harmon‘s counsel objected on the basis of
In support of his argument, Harmon cites United States v. Terry, 729 F.2d 1063 (6th Cir. 1984). In Terry, a criminal defendant, in a tape-recorded conversation with a Government witness, “made several references to his involvement in other criminal activity,” discussing, amongst other things, stolen property and his nervousness about getting arrested. Terry, 729 F.2d at 1069. In Terry, we reviewed the admission of the defendant‘s statements under
The Government has effectively argued that the statements were admissible to show Harmon‘s intent to persuade a father, whom he had never met, into allowing Harmon to have sex with his daughter. Thus, Harmon told the “father“: (1) he had had sex with a minor before; (2) he had familiarity with different underage girls; (3) he never hurt them; (4) he was an experienced “trainer” of “sub/sluts” and could help train Brooke; and (5) he was for real. Whether the statements were true or not is insignificant. What is significant is that by making these statements Harmon attempted to persuade and entice Agent Spadafora and his “daughter” to come to Ohio for a sexual encounter. Terry is therefore distinguishable from the instant case. Based on the record, Harmon‘s statements were properly admitted as evidence of his criminal state of mind. Accordingly,
Harmon argues, for the first time on appeal, that his statements were improperly admitted under
In support of his argument, Harmon cites two cases in which highly prejudicial evidence of a defendant‘s “other-act” and prior conviction were admitted under
B.
Harmon also argues that the district court erred by admitting the contents of an overnight bag found in his car when he was arrested upon arrival at the motel. We review a district court‘s evidentiary determinations for abuse of discretion. United States v. Wheaton, 517 F.3d 350, 364-65 (6th Cir. 2008). In reviewing the district court‘s
Harmon‘s overnight bag contained condoms, sex toys, a blindfold/sleeping mask, ropes, knotted sheet strips, towels, lotion, and hair clips. The district court found that the contents of the bag were generally relevant and therefore admissible under
On appeal, Harmon cites United States v. De Oleo for the proposition that a limiting instruction should have been used to blunt any claim of unfair prejudice to a defendant. 697 F.3d 338, 344 (6th Cir. 2012). However, De Oleo makes clear that limiting instructions are but one factor that a district court can consider in conducting a
III.
Harmon‘s second argument on appeal is that there was insufficient evidence to support his conviction for using a facility or means of interstate commerce in an attempt to persuade or entice a minor to have sex, in violation of
We review, de novo, a district court‘s resolution of a challenge to the sufficiency of the evidence supporting a criminal conviction to determine whether, after “viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Fisher, 648 F.3d 442, 450 (6th Cir. 2011) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original)). In a review for sufficiency, we must draw all available inferences and resolve all issues of credibility in favor of the jury‘s verdict. Wheaton, 517 F.3d at 365. Finally, “[c]ircumstantial evidence alone is sufficient to sustain a conviction and such evidence need not remove every reasonable hypothesis except that of guilt.” Id. (quoting United States v. Spearman, 186 F.3d 743, 746 (6th Cir. 1999)).
“A person can be convicted of violating
Section 2422(b) criminalizes an intentional attempt to achieve a mental state—a minor‘s assent—regardless of the accused‘s intentions vis-à-vis the actual consummation of sexual activities with the minor. The crime of attempt requires an intention to commit the substantive offense—here, critically, to persuade, induce, entice and coerce—and a substantial step towards its commission. A substantial step is less than what is necessary to complete the substantive crime, but more than mere preparation.
United States v. Berk, 652 F.3d 132, 140 (1st Cir. 2010), cert. denied, U.S., 132 S. Ct. 1650 (2012) (internal quotation marks and citations omitted).
It is undisputed that Harmon used a means of interstate commerce when he placed an advertisement in the classified section of an internet website, www.motherless.com, and used email, Yahoo instant messaging, text messages, and the telephone to communicate with Agent Spadafora. It is also undisputed that if Harmon had engaged in sexual activity with a 14-year-old, he could have been charged
A.
First, Harmon argues that he had no intention of knowingly persuading an individual under the age of 18 to engage in sexual activity and that his conviction oversteps the boundaries of the statute. Harmon claims that he was pre-empted from ever having to persuade or entice a minor because Agent Spadafora offered him a minor to engage in a sexual encounter in response to Harmon‘s internet posting seeking a sexual encounter with females between 18 and 24 years of age. However, it is possible to persuade, induce, entice, or coerce a minor to engage in sexual activity even if the minor had a predilection to do so.
Evidence of Harmon‘s intent to persuade, induce, or entice is not, as Harmon argues, limited to his initial interaction with Agent Spadafora, in which the latter offers Harmon the possibility of a sexual encounter with his 14-year-old “daughter.” Rather, the intent to persuade, induce, or entice was ongoing. Harmon repeatedly asked Agent Spadafora about what specific sex acts his “daughter” enjoyed, conceivably so that he could persuade and entice a minor by first learning what sexual acts she preferred, then offering to perform them. Additionally, Harmon sent a nude photo of himself to Agent Spadafora for the specific purpose of showing it to his “daughter,” and repeatedly asked Agent Spadafora what her reaction was. Harmon reassured Agent Spadafora that his “daughter” would be in experienced hands and that Harmon was drug and disease-free. To seal the deal, Harmon offered to provide, at the meeting, the type of alcoholic beverage that the father-daughter duo liked. When it seemed as though the prearranged plans for a meeting would fall through, Harmon asked to speak with the “daughter” directly, presumably so he could reassure, encourage, or induce her not to back out. Harmon‘s own words and actions suggest that he did not consider the sexual encounter with “Brooke” to be a fait accompli at the moment her “father” volunteered it. Instead, he actively pursued the opportunity, even when it seemed as though it would slip away. Evidence of Harmon‘s intent is pervasive throughout the course of his communications with Agent Spadafora, which go beyond passive acquiescence, and culminates in his arrival at the pre-arranged meeting place, with a bag of condoms, sex toys, and beer.
The evidence also proves that Harmon‘s intent was not limited to persuading Agent Spadafora but extended to persuading “Brooke” through Agent Spadafora. For example, a jury may have understood Harmon‘s sending of a nude photo to Agent Spadafora and the subsequent inquiries about “Brooke‘s” reaction, as Harmon‘s effort to entice the girl directly with the picture. A jury may also have found that Harmon‘s repeated requests to communicate directly with “Brooke” were attempts to get Agent Spadafora to permit Harmon to entice the girl.1
[t]he focus is on the intent of the defendant through his communications to influence the child‘s assent... [the defendant] never sought [the adult intermediary‘s] help in procuring the fictitious minor. He did not ask [the adult intermediary] to pass along any communication whatsoever to the minor. He did not make any promises to the minor through [the adult intermediary]. He did not offer any money or anything else of value, and he did not invite [the adult intermediary] or the minor anywhere.
B.
Harmon concurrently argues that he was treating the encounter as fantasy and had no intent to actually engage in a sexual encounter with a minor. It is well-established, however, that
C.
Harmon also challenges the sufficiency of evidence to prove that he took a substantial step toward the commission of the substantive offense of persuading, inducing, enticing, or coercing a minor to engage in sexual activity. Evidence presented included specific statements concerning the logistics of the meeting, including the time and place, and other necessary arrangements, such as planning time off from his work schedule. Harmon asked Agent Spadafora to text him when he and his “daughter” arrived, and to let him know where they were staying, including the room number, and at what time they should meet and where. In addition to making these detailed plans, Harmon actually came to the motel with an overnight bag containing condoms, sex toys, a blindfold/sleeping mask, ropes, knotted sheet strips, towels, lotion, hair clips, and an 18-pack of Coors Light beer. The fact that Harmon actually showed up at the site where he was supposed to have sex with a 14-year-old girl, in possession of these items, belies his contention that his internet ad and communications with Agent Spadafora were merely fantasy. Harmon‘s arrival at the motel was a substantial step that went beyond “mere preparation.” Accordingly, it satisfies the requirement for an attempt under
To the extent that Harmon argues that he did not believe that the individual in question was actually a minor because his original internet ad was aimed at women in the age range of 18 to 24 years, Harmon‘s argument is without merit. The evidence presented by the Government includes Agent Spadafora‘s repeatedly mentioning the age of his fictitious daughter, and Harmon‘s repeatedly confirming interest in meeting her for a sexual encounter. Additionally, the evidence includes Harmon‘s own statements of previous sexual encounters with minors, ostensibly to demonstrate that “Brooke” would be in experienced hands. Harmon‘s acknowledged awareness of the illegal nature of sexual encounters with minors also indicates that Harmon was aware that “Brooke” was a minor. Harmon‘s suggestions to Agent Spadafora for disguising his intent to engage in sexual encounters with minors, and Harmon‘s concerns about being caught in an illegal enterprise, provide further support for this finding. Lastly, the evidence includes a recorded phone conversation in which Harmon spoke with a female crime scene agent playing the part of the 14-year-old daughter, and asked “[W]hat do you want to do if I show up?” PageID 684-85. While this recording may not be unequivocal proof of the intent to meet, it does show that Harmon spoke to someone on the phone and, importantly, that “someone” was believed by Harmon to be a 14-year-old female. Based on the foregoing evidence, a rational trier of fact could have found, beyond a reasonable doubt, that Harmon attempted to knowingly persuade an individual, whom he believed to be a 14-year-old girl, to engage in sexual activity.
IV.
Harmon‘s third argument on appeal is that the district court erred in
Harmon argues that Jury Instruction 20, explaining the terms “persuade, induce, entice, or coerce,” and specifically the following language, was erroneous:
The [G]overnment does not have to prove that Mr. Harmon communicated directly with the person he thought to be a minor. Mr. Harmon may be proven guilty even if his communications were with undercover law enforcement officers and no actual minor existed. It is sufficient for the [G]overnment to prove Mr. Harmon attempted to persuade, induce, entice, or coerce a minor by communicating with someone he believed was the minor‘s parent, guardian, or someone else likely to have influence over the minor, even though that person was an undercover law enforcement officer.
PageID 340. Harmon argues that the phrase “by communicating with someone he believed was the minor‘s parent who could have influence over the minor” was too broad and that, based on this instruction, the jury could have convicted him for any communication he had with the parent—including non-criminal communication—without analyzing whether Harmon‘s words or actions were designed to entice a minor.
Harmon‘s argument takes the phrase out of context and considers it in isolation. We have held that “no single provision of the jury charge may be viewed in isolation; rather, the charge must be considered as a whole.” United States v. Ross, 502 F.3d 521, 527 (6th Cir. 2007). Considering the instructions as a whole, we note that the jury instructions began with a description of the elements of the crime charged, which made it clear that Harmon could not be convicted for having innocent conversations. The next section of the instructions consisted of definitions and included Jury Instruction 20. Thus the purpose of that instruction was simply to instruct the jury as to the definition of the terms “persuade, induce, entice, or coerce,” and not to clarify the elements of the crime.
Harmon also challenges the jury instruction based on a recent decision by the D.C. Circuit in a case where jury instructions defining the requisite intent of
Here, Jury Instruction 20 stated: “It is sufficient for the [G]overnment to prove Mr. Harmon attempted to persuade, induce, entice, or coerce a minor by communicating with someone he believed was the minor‘s parent, guardian, or someone else likely to have influence over the minor....” PageID 340. Unlike the terms “arrange” and “cause,” the term “influence” does encompass the key characteristic of the conduct prohibited under
Moreover, the challenged jury instruction is an accurate representation of the law. The Government cites a line of cases which all stand for the proposition that online efforts to arrange for sexual activity with a child through an adult intermediary violate
Accordingly, Harmon has not demonstrated that the district court committed plain error by giving Jury Instruction 20 because the challenged provision has a solid basis in the law, and when viewed as part of a whole, did not confuse, mislead or cause prejudice.
V.
Harmon‘s fourth argument on appeal is that the district court committed a procedural error by not providing a specif-
Harmon recognizes that the appropriate standard of review is plain error, yet he argues that the district court abused its discretion by imposing a procedurally unreasonable sentence. Notwithstanding Harmon‘s puzzling shift in standards of review, Harmon is unable to establish that any error, much less a plain error, occurred. The cases he cites also do not suggest that the district court committed plain error in imposing the recommended life term of supervised release due to Harmon‘s status as a repeat sex offender with a dangerous proclivity for using the Internet to entice minors towards sexual activity.
One case which Harmon cites, United States v. Inman, is distinguishable because, unlike in Harmon‘s case, Inman did not have a criminal history, the offense of conviction involved a lesser degree of concern for future dangerousness, and the district court imposed a life term of supervised release, which exceeded the joint recommendation of a ten-year term. 666 F.3d 1001 (6th Cir. 2012). Also different is United States v. Thompson, another case which Harmon relies on, because there the district court failed to articulate any basis for the defendant‘s sentence, which included “onerous special conditions” that are absent in Harmon‘s sentence. 509 Fed. Appx. 449 (6th Cir. 2012).
Harmon‘s sentence of 168 months of incarceration and a life term of supervised release is consistent with both congressional mandate and Sentencing Commission recommendations. See United States v. Kennedy, 499 F.3d 547, 553 (6th Cir. 2007) (“Congress insists that lifetime supervision be available to courts in sentencing sexual offenders” in light of concerns regarding the inadequacy of more limited supervision);
Harmon‘s sentence was also adequately explained, under the circumstances. Because the life term of supervised release was consistent with guideline recommendations, an extensive explanation was not required in this case. See Rita v. United States, 551 U.S. 338, 346 (2007). Accordingly, the district court‘s discussion of the
Irrespective of the adequacy of the district court‘s explanation, Harmon has not shown that the district court committed any error which infringed his substantial rights or seriously affected the fairness, integrity, or public reputation of the proceedings. Again we distinguish Inman where an inadequate explanation for a life term of supervised release was held to have affected substantial rights and integrity of proceedings, only after we found that “both the length of supervised release and the conditions imposed are likely more severe than if the district court had followed the correct procedures.” Inman, 666 F.3d at 1006-07. In Harmon‘s case, the district court demonstrated familiarity with the PSR and the “record makes clear that the sentencing judge listened to each argument,’ ‘considered the supporting evidence,’ was ‘fully aware’ of the defendant‘s circumstances and took ‘them into account’ in sentencing him.” Vonner, 516 F.3d at 387 (quoting Rita, 551 U.S. at 358). Therefore, neither Harmon‘s rights nor the fairness of the proceedings were affected and the district court committed no error.
VI.
For the reasons stated above, we AFFIRM Harmon‘s conviction and the district court‘s sentence.