Case: 15-12025   Date Filed: 08/25/2016   Page: 1 of 16


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-12025
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:14-cr-00116-KD-C-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

LANCY WHITE, JR.,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Alabama
                       ________________________

                             (August 25, 2016)

Before HULL, WILSON and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:
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      After a jury trial, Lancy White, Jr., appeals his convictions for using the

Internet to attempt to entice a minor to engage in sexual activity, in violation of 18

U.S.C. § 2422(b). A § 2422(b) conviction requires that the sexual activity the

defendant enticed or attempted to entice be a criminal offense. After review, we

affirm White’s convictions.

                                I. BACKGROUND FACTS

      According to the trial evidence, law enforcement officer Corporal James

Morton, posing as “Cindy,” a mother of two young girls aged 9 and 12, placed an

ad in the “Casual Encounters” section of Craiglist. White responded to the ad, and,

over two days, exchanged emails with “Cindy” in which White discussed meeting

“Cindy” to engage in sexual activity with her daughters. When White arrived at

the arranged meeting place, he was arrested. In a subsequent statement to Corporal

Morton, White admitted that he was the person who responded to the Craigslist ad

and corresponded via email with “Cindy” and that he had planned to engage in

sexual activity, including vaginal and oral sex, with her two daughters.

                                      II. DISCUSSION

      On appeal, White raises several arguments attacking his convictions. 1 For

the reasons that follow, none of White’s claims have merit.

A.    Specificity of the Indictment


      1
          On appeal, White does not raise any issues as to his 132-month sentence.
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      White contends his indictment was deficient because it failed to charge with

sufficient specificity the Alabama sex offense for which White could have been

charged. White did not assert this argument in his motion to dismiss the

indictment filed in the district court. Thus, he must show plain error, which he has

not. See Fed. R. Crim. P. 12(b)(3)(B)(iii), 52(b); United States v. Sperrazza, 

, 1118-20 (11th Cir. 2015).

      The indictment charged White with two counts, one for each of “Cindy’s”

daughters. Both counts alleged that the conduct occurred between April 1, 2013

and April 2, 2013. Count 1 charged that White attempted to entice an individual,

whom he believed to be a 9-year-old girl, to engaged in criminal sexual activity

and that, had the sexual activity occurred, White could have been charged with

violating Alabama Code §§ 13A-6-63 (first degree sodomy), 13A-6-64 (second

degree sodomy), and 13A-6-67 (second degree sexual abuse). Count 2 charged

that White attempted to entice an individual, whom he believed to be a 12-year-old

girl, to engage in criminal sexual activity and that, had the sexual activity occurred,

White could have been charged with violating Alabama Code §§ 13A-6-62 (second

degree rape), 13A-6-64 (second degree sodomy), and 13A-6-67 (second degree

sexual abuse).

      White complains that the indictment did not specify which subsections of the

Alabama sex offense statutes his completed conduct would have violated. Nothing


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in the record suggested forcible compulsion or that the minors were mentally

impaired. The only subsections of the Alabama statutes charged in Counts 1 and 2

that could have applied to White’s conduct were those based on the ages of the

minor victims, and each count of the indictment charged the victim’s age and the

applicable Alabama sex offense statutes. Furthermore, the indictment listed the

specific dates on which the alleged conduct occurred. Accordingly, we reject

White’s assertions that he lacked proper notice of the charges and potentially was

subjected to double jeopardy. See United States v. Steele, 

, 1233-34

(11th Cir. 1999).

      To the extent White argues that the Alabama statutes were erroneously listed

conjunctively, even assuming arguendo that this was error, White has failed to

show the alleged error was prejudicial. At least one of the Alabama statutory

provisions applied to White’s conduct in each count. Specifically, in Count 1,

White could have been charged in Alabama with first degree sodomy, as he stated

to Corporal Morton that he sought to engage in oral sex with the 9-year-old

daughter. See Ala. Code §§ 13A-6-63(a)(3), 13A-6-60(2). In Count 2, White

could have been charged in Alabama with violating any of the statutes listed based

on his statements to Corporal Morton regarding oral sex with the 12-year-old

daughter. See 

13A-6-64(a)(1), 13A-6-67(a)(2). And, where

an indictment charges several means of violating a statute in the conjunctive, a


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conviction may be obtained by proof of only one. United States v. Simpson, 

, 1300 (11th Cir. 2000).

       As a corollary, White contends the district court erred when it failed to

instruct the jury that to convict him under 18 U.S.C. § 2422(b), the jury was

required to unanimously agree on the specific Alabama statute his completed

conduct would have violated. White, however, did not object to the district court’s

proposed jury instructions and cannot establish that the district court plainly erred,

as neither this Court nor the Supreme Court has held that such an instruction is

necessary. See United States v. Lejarde-Rada, 

, 1291 (11th Cir.

2003). 2

B.     Email Evidence

       The district court did not abuse its discretion in admitting the printed copies

of the emails between White and Corporal Morton. See United States v. Caldwell,

, 1001 (11th Cir. 1985) (explaining that we will not disturb a district

court’s determination that a particular piece of evidence was appropriately

authenticated unless there is no competent evidence in the record to support it).

Corporal Morton, a witness with knowledge, testified that the printed emails

completely and accurately represented the email exchange between him (posing as

“Cindy”) and White, which was sufficient to admit them. See Fed. R. Evid.

       2
         On direct appeal, we decline to address White’s claim that his trial counsel was
ineffective. See United States v. Bender, 

, 1284 (11th Cir. 2002).
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901(b)(1); United States v. Belfast, 

, 819 (11th Cir. 2010). Any

anomalies and inconsistencies in the emails noted by White may have created a

question of authenticity for the jury, but did not affect the admissibility of the

documents. See 

.

      The district court also did not abuse its discretion in denying White’s motion

to dismiss the indictment based on the government’s alleged spoliation of the email

evidence. In cases involving the destruction of evidence, to show a defendant’s

constitutional right to due process was violated, the defendant must show that,

among other things, the government acted in bad faith. United States v. Brown, 

, 910 (11th Cir. 1993).

      At the outset, we note that the record does not appear to support White’s

claim that the government altered the email evidence. At trial, Corporal Morton

testified that he did not alter or change the emails in any way or hide any content of

the emails. Furthermore, the government’s computer forensic expert explained the

anomalies in the emails that White argued showed alteration. Specifically,

Corporal Morton used a Gmail account to correspond with White through

Craiglist, and Google automatically omits prior messages in a long email chain and

inserts the phrase “quoted text hidden” in brackets. In addition, time stamp

discrepancies were explained by the fact that Google uses the time in the time zone

of the computer the emails are being printed from (in this case Alabama), but the


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emails also showed Coordinated Universal Time, or “computer time,” which

would appear to be five hours later, but is actually not.

      Nonetheless, even assuming arguendo that the some emails were altered or

omitted, White did not point to any evidence that the government did so

deliberately, much less that the government deleted or altered emails in bad faith.

Rather, White’s motion to dismiss the indictment based on spoliation of evidence

argued that the government’s apparent negligence coupled with its failure to

explain the anomalies in the emails rose to the level of denial of due process.

Thus, the district court did not err in denying White’s motion to dismiss the

indictment based on spoliation of evidence.

C.    Expert Testimony

      The district court did not abuse its discretion by excluding the expert

testimony of Dr. George Kirkham, a criminologist. White originally proffered Dr.

Kirkham as an expert on established procedures for conducting undercover

investigations of sex offenders and to opine whether Corporal Morton’s email

communications with White crossed the line into entrapment. The district court

excluded this testimony on relevancy grounds, and White does not challenge that

ruling on appeal. Instead, White contends that Dr. Kirkham should have been

allowed to testify that the emails between White and Corporal Morton appeared to




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have been tampered with or altered, especially since the government was permitted

to introduce testimony from a computer forensic expert with the FBI.

       The proponent of expert testimony has the burden under Federal Rule of

Evidence 702 to show the expert witness: (1) is qualified to testify competently, (2)

uses a reliable methodology to reach his conclusions, and (3) will be helpful to the

trier of fact. See United States v. Frazier, 

, 1260 (11th Cir. 2004)

(en banc). Here, White has never contended, much less shown, that Dr. Kirkham is

an expert on computer forensics or electronic or email evidence. Nor has White

ever explained how Dr. Kirkham’s training or experience as a criminologist

qualified him to render an opinion on whether the emails between White and

Corporal Morton were altered. In fact, at trial White conceded that he did not

know whether Dr. Kirkham was qualified to testify as a computer expert.

Accordingly, White did not carry his burden to show Dr. Kirkham’s qualifications

or reliability.

       As for the government’s computer forensic expert, the district court

sustained White’s objection to the government’s expert and did not permit the

expert to testify as part of the government’s case-in-chief. During his defense,

however, White testified that the emails introduced by the government were out of

order and missing some exchanges. White pointed to the phrase “quoted text

hidden” in some of the emails and suggested that the government was hiding some


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of his emails that showed he was not interested in having sex with children, but

rather wanted to have sex with “Cindy.” Only after this testimony from White did

the district court allow the government’s expert to testify on rebuttal and only to

explain the meaning of the phrase “quoted text hidden” and the seeming

discrepancies in the time stamps on some of the emails.

      As this Court explained in Frazier, the district court does not abuse its

discretion when it allows the government’s rebuttal expert witness to testify on an

issue after the district court has excluded the defendant’s expert witness on the

same issue, but on grounds other than relevance. 

(distinguishing

United States v. Gaskell, 

, 1063 (11th Cir. 1993), in which the

expert’s opinion was excluded on relevance grounds and was “otherwise

admissible”). That is the case here. Dr. Kirkham’s testimony was excluded not

because it was irrelevant, but because White failed to show Dr. Kirkham was

qualified to testify competently. Once White’s own testimony opened the door to

whether the emails had been altered, the district court was within its discretion to

allow the government’s expert to testify on rebuttal.

D.    Entrapment

      White argues that he was entitled to a judgment of acquittal because he was

entrapped as a matter of law. White stresses that, in their email correspondence,




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Corporal Morton first introduced the idea of “family fun” and reinitiated contact

with White, and that he (White) never asked to speak with any children.

       Given that entrapment is typically a jury question, “entrapment as a matter

of law is a sufficiency of the evidence inquiry.” United States v. Isnadin, 

, 1303 (11th Cir. 2014) (quotation marks omitted). As such, in assessing an

argument regarding entrapment as a matter of law, we look to whether the

evidence was sufficient for a reasonable jury to conclude that the defendant was

predisposed to commit the offense. 

court did not err in denying White’s motion for a judgment of

acquittal, as sufficient evidence existed for a reasonable jury to conclude that

White was predisposed to commit the offense.3 Notably, after Corporal Morton,

posing as “Cindy,” mentioned “family fun,” White readily took part in the

discussion, stating that “family fun” was something he had always wanted to try

and that “this is something [he had] been searching for for quite some time.”

White expressed hope that he would be invited to “Cindy’s” home and also

described in explicit detail the sexual acts he wanted to perform on the minors.

When “Cindy” invited White to come over the next night, White thanked her for

the invitation. They then agreed upon the rules for White’s sexual contact with the


       3
         The district court did instruct the jury regarding entrapment. While there was sufficient
evidence to consider the entrapment defense, there was not enough evidence to require an
acquittal based on entrapment as a matter of law.
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minors and arranged to meet at 6:00 p.m. White also asked about having “an

ongoing friendship.”

      White focuses on the fact that Corporal Morton re-initiated contact the next

morning, but Corporal Morton did so merely by stating “Good morning,” and

White responded that he was going to see “Cindy” that day. The only reservation

White expressed during their email communications was that “Cindy” might be

setting him up. In his post-arrest interview with Corporal Morton, White said,

“The whole family fun, sex with kids and the mother there watching or

supervising. That’s all really, really heavy stuff. Nasty. It’s something you have

to be careful with.” Moreover, the jury could infer that White was fully aware of

the meaning of the phrase “family fun,” as he admitted that he wrote a paper on the

topic for a college class.

      White testified that he believed he was discussing “Cindy’s” fantasies in the

emails, that he had no sexual interest in children, that his explicit descriptions of

sexual acts were aimed at “Cindy,” not her daughters, and that the emails were out

of order and omitted statements that made that clear. The jury, however, was free

to discredit White’s explanation, and obviously did. See 

(explaining

that in reviewing for sufficiency of the evidence, we resolve all reasonable

inferences and credibility determinations in favor of the verdict). The




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government’s trial evidence was sufficient for a reasonable jury to conclude that

White was predisposed to commit the charged § 2422(b) offenses.

E.    Evidence of Intent and Substantial Step

      Alternatively, White contends that the district court should have granted his

motion for a judgment of acquittal because the government failed to present

sufficient evidence that he intended to entice a child and that he had completed an

attempt by taking a “substantial step” toward committing the crimes.

      Section 2422(b) criminalizes both the completed offense of enticing a child,

and an attempt to commit the offense, as follows:

      Whoever, using the mail or any facility or means of interstate or
      foreign commerce, or within the special maritime and territorial
      jurisdiction of the United States knowingly persuades, induces,
      entices, or coerces any individual who has not attained the age of 18
      years, to engage in prostitution or any sexual activity for which any
      person can be charged with a criminal offense, or attempts to do so,
      shall be fined under this title and imprisoned not less than 10 years or
      for life.

18 U.S.C. § 2422(b) (emphasis added). In order to sustain a conviction for

attempt, “the government need only prove (1) that the defendant had the specific

intent to engage in the criminal conduct for which he is charged and (2) that he

took a substantial step toward commission of the offense.” United States v.

Murrell, 

, 1286 (11th Cir. 2004).

      To prove the intent element, the government must show that the “defendant

intended to cause assent on the part of the minor, not that [the defendant] acted

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with the specific intent to engage in the sexual activity.” United States v. Lee, 

, 914 (11th Cir. 2010) (quotation marks omitted). It is the persuasion,

inducement, enticement, or coercion of the minor, rather than the sex act itself, that

is prohibited by the statute. 

. An attempt to “stimulate or

cause the minor to engage in sexual activity” fits the statutory definition of

inducement. 

      This Court has held that direct communication with a supposed minor is

unnecessary, and communication with an adult intermediary with the purpose of

attempting to entice a minor is sufficient to sustain a conviction. See United States

v. Rothenberg, 

, 626 (11th Cir. 2010). Further, by negotiating with a

fictitious parent in order to “cause the minor to engage in sexual activity with

him,” the defendant has the necessary specific intent to violate the attempt

provision of § 2422(b). See 

(noting that “the efficacy of

§ 2422(b) would be eviscerated if a defendant could circumvent the statute simply

by employing an intermediary to carry out his intended objective”).

      To prove the conduct element of a § 2422(b) attempt, the government must

prove that the defendant took a substantial step toward causing assent on the part

of the minor, not necessarily toward causing actual sexual contact. 

. “A substantial step can be shown when the defendant’s objective acts mark

his conduct as criminal and, as a whole, strongly corroborate the required


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culpability.” United States v. Yost, 

, 819 (11th Cir. 2007) (quotation

marks omitted). In determining whether the record supports a finding that the

defendant took a substantial step in committing a § 2422(b) offense, we look at the

totality of the defendant’s conduct. 

.

       For example, in Murrell, this Court held that the defendant, who had

arranged to have sex with a minor at a hotel, took a substantial step toward his goal

of inducing her to engage in sexual activity because he: (1) made incriminating

statements to an undercover law enforcement officer, (2) traveled two hours to

meet the girl at the hotel, and (3) brought with him a teddy bear, money to pay the

girl’s father, and a box of condoms. 

; see also 

(finding that the defendant made a substantial step that “crossed the

line from mere ‘talk’ to inducement” by placing a call to an undercover officer

posing as a minor, posting sexually explicit pictures online, and making

arrangements to meet the minor). 4

       Here, the trial evidence, recounted above, amply supports the jury’s findings

that White intended to entice a minor, as he contacted and negotiated with “Cindy”

in order to cause her two daughters, whom he believed to be 9 and 12, to engage in

sexual activity with him. Notably, after he and “Cindy” discussed the “friends”

       4
         To the extent White argues that we should not follow our precedent in Murrell and
Rothenberg, we are bound by the prior panel’s holdings in Murrell and Rothenberg, unless and
until they are overruled or undermined to the point of abrogation by the Supreme Court or by this
Court sitting en banc. See United States v. Archer, 

, 1352 (11th Cir. 2008).
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that would visit her daughters, White told “Cindy” that he hoped she would invite

him to her home and he assured “Cindy” that he would follow her rules and not

hurt them.

      The evidence also amply supports the jury’s finding that White took a

substantial step toward causing the purported minors to assent to illicit sexual

contact. First, White made incriminating statements to Corporal Morton posing as

“Cindy,” including describing in explicit detail the sexual activity he planned to

engage in with the minors and acknowledging the need for secrecy. See 

(pointing to defendant’s incriminating statements as objective

acts that corroborate culpability). Second, to the extent these statements were

“mere talk,” as White contends, White then arranged to meet “Cindy” and her

daughters at her apartment and actually drove to that location. See 

(concluding that the defendant “crossed the line from mere ‘talk’ to

inducement” by placing a call to an undercover officer posing as a minor, posting

sexually explicit pictures online, and making arrangements to meet the minor);

(noting that the defendant travelled two hours to another

county to meet the minor for sex).

      Accordingly, we conclude that the trial evidence was sufficient for a

reasonable jury to convict White of both attempt counts under § 2422(b), and thus

the district court did not err in denying White’s motion for a judgment of acquittal.


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AFFIRMED.




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