PER CURIAM:
A jury convicted Adam Wayne Lebowitz of producing child pornography in violation of 18 U.S.C. § 2251(a) and (e), and of attempting to entice a child to engage in unlawful sexual activity in violation of 18 U.S.C. § 2422(b). The district court sentenced Lebowitz to 320 months' imprisonment on each count, to run concurrently. After examining each issued raised by Lebowitz on appeal, we affirm his convictions and sentences.
When K.S. was 15 years old, he registered for a MySpace account. For My-Space profiles to be viewable by the public, the user must attest to being over the age of 21. K.S. desired such a profile, so he falsely claimed he was 21 years old on the registration form. K.S. then created an on-line profile that suggested his age was either 17 or 18 years old. On October 25, 2006, Lebowitz, whose MySpace profile identified himself as a 47-year-old doctor, sent a message to K.S. via his MySpace account, saying: "that's a great pic of you hitting the [base]ball. [G]ot any more pics of you playing?" Lebowitz provided K.S. with his contact information, and the two engaged in on-line chats and exchanged e-mails. The chats were sexual in nature, and Lebowitz sent K.S. nude photographs of himself. In one of these initial chats, K.S. told Lebowitz he was 15 years old.
After communicating with Lebowitz for a day, K.S. informed his mother of the chats and messages. K.S.'s mother obtained Lebowitz's phone number from one of his e-mails, phoned him, and threatened to kill him if he did not stop contacting her son. Lebowitz then sent K.S. a chat message asking him if anything was wrong. K.S's mother contacted law enforcement.
On October 27, 2006, K.S. and his mother met with Investigator Beth Suber of the Coweta County Sheriff's Office. At Investigator Suber's suggestion, K.S.'s mother agreed to allow K.S. to continue corresponding with Lebowitz in order to determine Lebowitz's intentions. Investigator Suber instructed K.S. to make his true age clear to Lebowitz during on-line conversations. During one on-line chat, K.S. told Lebowitz: "i [sic] would drive up there but im [sic] only 15 and odnt [sic] have a car." Lebowitz replied: "coming to get you is not a problem."
Lebowitz and K.S. also conversed by phone. Investigator Suber recorded the phone calls. In the last phone call, K.S. and Lebowitz arranged to meet at K.S.'s home the following day. K.S. again mentioned he was only 15 years old. Lebowitz responded in a surprised tone, "I thought you were 17." K.S. again said he was 15. After a pause, Lebowitz responded, "you know, I've never met someone who's underage."
On November 2, 2006, Lebowitz arrived at K.S.'s home. Investigator Suber arrested Lebowitz and searched his vehicle. In the front seat she found a backpack that contained condoms and lubricants. She also found two sleeping bags and two towels. Investigator Suber then obtained a warrant to search Lebowitz's residence. Upon searching the residence, she seized a Sony notebook computer, an iPod, a HP Pavillion computer with camera, a printout of a phone number "look-up," a piece of paper with the victim's name and address, pieces of paper with various screen names and emails, CD-R's, a Sony CPU, a green file with various MySpace printouts of screen names and email addresses, VHS tapes, bottles of Astro-glide, and various types of condoms. A VHS tape labeled "XXX" contained video of Lebowitz engaged in sexual acts with teenage males.
Agents were able to identify A.G. and C.R. as the males on the VHS tape engaged in sexual activity with Lebowitz. Agents also discovered still images from the videos of A.G. and C.R. on Lebowitz's computer, stored in a manner indicating that the images had been distributed over the internet. A.G. and the defendant began a sexual relationship when A.G. was 16 years old. However, A.G. provided conflicting statements regarding whether he was under the age of 18 at the time the video was made. C.R. began engaging in sexual relations with Lebowitz when C.R. was 15 years old. Lebowitz and C.R. engaged in sexual acts on at least ten occasions. All but the sexual encounter on the videotape occurred in Lebowitz's car. When C.R. was 16 years old, Lebowitz asked C.R. to make a videotape of their sex acts. C.R. agreed. C.R. met Lebowitz at their normal rendezvous location. Lebowitz had brought a tripod and camera, but told C.R. there was not enough space in the car to make the video. Lebowitz crawled through C.R.'s bedroom window, Lebowitz set up the video equipment in C.R.'s bedroom, and Lebowitz recorded their sexual acts.
On June 12, 2007, a federal grand jury charged Lebowitz with two counts of producing child pornography, in violation of 18 U.S.C. § 2251(a) and (e), and one count of attempting to entice a child to engage in unlawful sexual activity, in violation of 18 U.S.C. § 2422(b). Lebowitz moved to have the indictment dismissed, suppress evidence found during the searches of his car and his house, and sought to exclude printouts of the chats with K.S. on authenticity grounds.
A magistrate judge recommended denying the motion to suppress the evidence found at Lebowitz's house. The magistrate
The district court held a hearing on Lebowitz's motion to suppress evidence seized from his car and his challenge to the authenticity of the chat printouts. As to the search of the car, Investigator Suber testified that she believed she could search the car incident to Lebowitz's arrest. Investigator Suber's investigative report also stated this rationale. However, the district court denied the motion to suppress on an alternative basis, finding that Investigator Suber could have reasonably expected to find evidence in Lebowitz's car associated with the offense for which he was arrested.
As to the authenticity of the chat printouts, Investigator Suber testified that K.S. printed the chats and delivered them to her. K.S. confirmed to Investigator Suber that the messages were exactly what was on his computer. Investigator Suber testified that a section of chat messages was missing, but that the remainder appeared unaltered. In his trial testimony, K.S. confirmed Investigator Suber's account.
In response, Lebowitz offered the testimony of Jim Persinger, a computer forensics expert. Persinger testified that K.S.'s method of producing the printouts created a possibility for alteration. However, Persinger admitted that he had no evidence of any alteration or tampering. Persinger also admitted that the substance of many of the chats was corroborated by e-mail messages and subsequent events. The district court determined that the Government had made a prima facie showing of authenticity, and refused to exclude the printouts.
The case proceeded to trial. At the close of the Government's case and at the close of the evidence, Lebowitz unsuccessfully moved for judgments of acquittal. During deliberations, the jury submitted multiple written questions to the court, all pertaining to the enticement of K.S. The jury reached a verdict on the first two counts but claimed deadlock on count three. The district court gave an Allen charge. After six more hours of deliberation, the jury reached three unanimous verdicts. The jury found Lebowitz not guilty of count one (concerning the video of A.G.); guilty of count two (concerning the video of C.R.); and guilty of count three (concerning the enticement of K.S.).
On July 12, 2010, the district court held Lebowitz's sentencing hearing. The district court ruled on Lebowitz's objections to his Presentence Investigation Report (PSI), and established Lebowitz's total offense level as 40, his criminal history category as I, and his advisory Guidelines range as 292 to 365 months' imprisonment. Lebowitz, who is HIV positive, presented expert testimony concerning the risk of transmitting HIV through unprotected oral sex. Although the expert acknowledged the behavior was irresponsible, he insisted the risk of transmission was very minimal.
After the expert's testimony and counsel's arguments, the district court discussed the § 3553(a) factors. The district
Lebowitz argues that the district court abused its discretion by admitting into evidence printouts of internet chat conversations between K.S. and Lebowitz. This court reviews a district court's evidentiary rulings for abuse of discretion. United States v. Lanzon, 639 F.3d 1293, 1300 (11th Cir.2011). The factual findings underlying those rulings are reviewed for clear error. Id.
Lebowitz argues that admission of the printouts violated the authentication requirement in Federal Rule of Evidence 901. To authenticate a document, Rule 901 only requires a proponent to present "sufficient evidence to make out a prima facie case that the proffered evidence is what it purports to be." United States v. Belfast, 611 F.3d 783, 819 (11th Cir.2010) (quotation omitted). After meeting the prima facie burden, the evidence may be admitted, and the ultimate question of authenticity is then decided by the jury. Id. "A district court has discretion to determine authenticity, and that determination should not be disturbed on appeal absent a showing that there is no competent evidence in the record to support it." United States v. Siddiqui, 235 F.3d 1318, 1322 (11th Cir.2000). "Evidence may be authenticated through the testimony of a witness with knowledge." Lanzon, 639 F.3d at 1301 (citing Fed.R.Evid. 901(b)(1)).
Here, K.S. testified that he had printed out the chats and that the printouts submitted into evidence accurately reflected the chat messages. K.S. also told the jury he could not remember certain aspects of how the printouts were created. However, "[a]ppellate courts reviewing a cold record give particular deference to credibility determinations of a fact-finder who had the opportunity to see live testimony." Owens v. Wainwright, 698 F.2d 1111, 1113 (11th Cir.1983). We find that the district court did not clearly err by finding K.S. credible. Accordingly, the Government met its prima facie burden under Rule 901, leaving the ultimate question of authenticity for the jury.
Lebowitz also argues that the admission of the printouts violated the best evidence rule because the printouts did not accurately reflect the data stored in K.S.'s computer. See Fed.R.Evid. 1001-1004. Federal Rule of Evidence 1002 requires introduction of an original document. Federal Rule of Evidence 1001(3) defines "original" to include a printout of computer data shown to accurately reflect that data. Accuracy of the printout is a preliminary question of admissibility to be determined by the court. Fed.R.Evid. 104(a) & 1008. Here, the district court credited K.S.'s testimony concerning the accuracy of the printouts, and we defer to that credibility determination. See Owens, 698 F.2d at
Investigator Suber searched Lebowitz's car after he was arrested at K.S.'s residence, and discovered evidence of Lebowitz's intentions, including sleeping bags and a zip-lock bag full of condoms and lubricants. The district court refused to suppress the evidence seized from Lebowitz's car. We review the district court's findings of fact for clear error. United States v. Farley, 607 F.3d 1294, 1325-26 (11th Cir.2010). The application of the exclusionary rule's good-faith exception is a legal issue we review de novo. United States v. Martin, 297 F.3d 1308, 1312 (11th Cir.2002).
Even assuming Investigator Suber's search of Lebowitz's car violated his Fourth Amendment rights, the good-faith exception to the exclusionary rule applies to a police officer's reliance on binding Circuit precedent. Davis v. United States, ___ U.S. ___, 131 S.Ct. 2419, 2429, 180 L.Ed.2d 285 (2011). In searching the car, Investigator Suber relied on our precedent, which until recently allowed a search incident to a recent occupant's arrest regardless of the occupant's ability to access the passenger compartment. See United States v. Davis, 598 F.3d 1259, 1262 (11th Cir.2010), aff'd, ___ U.S. ___, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011); United States v. Gonzalez, 71 F.3d 819, 825-26 (11th Cir.1996). Investigator Suber's good-faith reliance on that precedent precludes exclusion of the evidence seized from Lebowitz's car. The district court correctly denied the motion to suppress.
Lebowitz requested a Franks hearing to challenge the validity of Investigator Suber's affidavit supporting the warrant to search his home. Lebowitz claimed Investigator Suber intentionally or recklessly omitted from her affidavit that K.S. had provided a false age on his MySpace page. The district court refused to hold a hearing.
We will review the district court's refusal to hold a Franks evidentiary hearing de novo.
Affidavits supporting warrants are presumptively valid. Id. "[I]ntentional or reckless omissions will invalidate a warrant only if inclusion of the omitted facts would have prevented a finding of probable cause." United States v. Kapordelis, 569 F.3d 1291, 1309 (11th Cir.2009) (citation omitted). The defendant bears the burden of demonstrating that the alleged omission would have prevented a finding of probable cause. See United States v. Novaton, 271 F.3d 968, 986-87 (11th Cir.2001).
"Probable cause to support a search warrant exists when the totality of the circumstances allows the conclusion
Lebowitz argues that the timing of his knowledge of K.S.'s age creates an innocent explanation for his conduct, and therefore the inclusion of K.S.'s misleading statements about his age would have prevented a finding of probable cause. However, a post-hoc innocent explanation for incriminating behavior does not vitiate a finding of probable cause. See United States v. Gonzalez, 969 F.2d 999, 1003-04 (11th Cir.1992). Lebowitz engaged in graphic sexual conversations with K.S. Any ambiguity as to K.S.'s age is immaterial because Lebowitz admits he learned that K.S. was a 15-year-old boy prior to appearing at K.S.'s home possessing condoms and lubricants. These facts established probable cause to support Lebowitz's arrest for attempted child molestation. Lebowitz's use of his home computer to contact his intended sexual partner established the necessary connection between his residence and his suspected criminal activity. Those contacts need not have been illegal to provide a reasonable basis to believe that evidence of Lebowitz's attempted child molestation would be recovered from his home. Because inclusion of the alleged omission would not have prevented a finding of probable cause, a Franks hearing was unnecessary.
Lebowitz also sought to suppress the VHS tape seized during the search of his home, contending that probable cause did not support inclusion of "pornographic material" and "any items commonly found in child pornogrphic [sic] cases" in the warrant as items to be seized. The district court refused to suppress the VHS tape.
Even if we were to accept Lebowitz's argument that probable cause did not support inclusion of "pornographic material" and "any items commonly found in child pornogrphic [sic] cases" in the warrant, we find that the good-faith exception to the exclusionary rule would apply.
Lebowitz challenges the constitutionality of 18 U.S.C. § 2251(a),
We review de novo a challenge to a statute's constitutionality. Belfast, 611 F.3d at 803. Lebowitz does not base his vagueness challenge on the First Amendment. Cf. New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982).
A person of common intellect who reads 18 U.S.C. § 2251(a) would know that a person who persuades a 16 year old to engage in sexual conduct for the purpose of recording it, and later transmits that recording over the internet, would be in violation of federal law. Lebowitz's vagueness challenge fails.
Lebowitz challenges the sufficiency of the evidence on both counts of conviction. Lebowitz contends his § 2251 conviction lacked sufficient evidence of purpose because the recording was only incidental to his sexual encounter with C.R. As for his conviction under 18 U.S.C. § 2422(b), Lebowitz contends that the Government failed to prove his criminal intent.
We review the sufficiency of the evidence in a criminal trial de novo. United States v. Williams, 527 F.3d 1235, 1244 (11th Cir.2008). We must: (1) view the evidence in the light most favorable to the government; (2) resolve any conflicts in favor of the government; (3) accept all reasonable inferences that tend to support the government's case; and (4) assume that the jury made all credibility choices in support of the verdict. Id. "In rebutting the government's evidence `[i]t is not enough for a defendant to put forth a reasonable hypothesis of innocence, because the issue is not whether a jury reasonably could have acquitted but whether it reasonably could have found guilt beyond a reasonable doubt.'" Id. (quoting United States v. Thompson, 473 F.3d 1137, 1142 (11th Cir.2006) (alteration in original)).
Section 2251(a) required the Government prove beyond a reasonable doubt that one purpose of the sexually explicit conduct was to produce a visual depiction. 18 U.S.C. § 2251(a). The Government did not have to prove that Lebowitz was single-minded in his purpose. See Ortiz-Graulau, 526 F.3d at 19; cf. United States v. Sirois, 87 F.3d 34, 39 (2d Cir.1996) ("The criminal law applies to everyone, not just the single-minded. And a person who transports children across state lines both to engage in sexual intercourse with them and to photograph that activity is no less a child pornographer simply because he is also a pedophile.")
Lebowitz claims the recording was only incidental to his sexual encounter with C.R. The evidence belies his argument. C.R. testified that he and Lebowitz discussed videotaping a sexual encounter prior to the recording. Lebowitz brought the camera and a tripod, carried them through C.R.'s bedroom window, and set up the equipment. The sexual encounter occurred in C.R.'s bedroom only because there was not room for the recording equipment in Lebowitz's car. Such purposeful conduct cannot be described as incidental. See Ortiz-Graulau, 526 F.3d at 19 ("This is not a case of a security camera mechanically picking up a random act."); Webster's Third New Int'l Dictionary 1142 (3d ed.1976) (defining "incidental" as "occurring merely by chance or without intention or calculation"). Whether some other sexual encounter would have occurred even without recording equipment is irrelevant. A reasonable jury could conclude Lebowitz violated 18 U.S.C. § 2251(a).
Section 2422(b) required the Government prove beyond a reasonable doubt that Lebowitz intended to engage in criminal sexual activity with K.S. Lebowitz argues that the evidence of his intent was ambiguous. Lebowitz contends the evidence does not support a finding that he believed K.S. was 15 years old during their initial conversations, and that he abandoned any ill motive upon learning K.S.'s true age.
K.S. testified that he told Lebowitz in one of his first chats that he was 15 years old. Credibility questions are
Lebowitz challenges the district court's jury instructions on both counts of conviction. This court reviews a district court's rejection of a proposed jury instruction for abuse of discretion. United States v. Merrill, 513 F.3d 1293, 1305 (11th Cir.2008).
A trial court enjoys broad discretion to formulate jury instructions provided those instructions are correct statements of the law. Id. A refusal to incorporate a requested instruction will be reversed only if "(1) the requested instruction was substantively correct, (2) the court's charge to the jury did not cover the gist of the instruction, and (3) the failure to give the instruction substantially impaired the defendant's ability to present an effective defense." United States v. Culver, 598 F.3d 740, 751 (11th Cir.2010) (quotation omitted). Further, an instruction that tracks the statute's text will almost always convey the statute's requirements. United States v. Hurn, 368 F.3d 1359, 1362 (11th Cir. 2004). "Under our deferential standard of review, we reverse only if we are left with a substantial and eradicable doubt as to whether the jury was properly guided in its deliberations." United States v. Browne, 505 F.3d 1229, 1276 (11th Cir.2007) (quotation omitted).
Lebowitz argues that the district court failed to adequately instruct the jury as to the elements of § 2251(a). Lebowitz's requested instruction would have required the jury to find beyond a reasonable doubt that "the making of the visual depiction of sexually explicit conduct was a dominant motive for Defendant's actions toward ... C.R. ..., and was not merely incidental to their interactions." Instead, the district court's instruction tracked the statutory language, requiring the jury to find beyond a reasonable doubt that Lebowitz "employed, used, persuaded, induced, enticed or coerced the minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct."
In support of his "dominant motive" requirement, Lebowitz cites Mortensen v. United States, 322 U.S. 369, 64 S.Ct. 1037, 88 L.Ed. 1331 (1944), and Forrest v. United States, 363 F.2d 348 (5th Cir.1966). Both are Mann Act cases involving crimes other than the production of child pornography. Even if Mann Act precedent applies to 18 U.S.C. § 2251(a), refusal to give the requested instruction would not have been error. "This court has long declined to extend the doctrine of Mortensen beyond its facts." Forrest, 363 F.2d at 350. Instead, we have held that dual purposes are sufficient for a conviction, and we "need not concern ourselves" with whether the illegal purpose was dominant over other purposes. Id. at 352. Our model Mann Act jury instructions reflect this holding. See Eleventh Circuit Model Jury Instruction
As for the "merely incidental" language, Lebowitz has not demonstrated that the failure to include this language substantially impaired his ability to present an effective defense. Lebowitz argued repeatedly to the jury that the video recording of C.R. was incidental to their consensual relationship. Lebowitz could make this argument because incidental acts are, by definition, the opposite of purposeful ones. Webster's Third New Int'l Dictionary 1142, 1847 (3d ed.1976) (defining "incidental" as "occurring merely by chance or without intention or calculation" and "purposeful" as "guided by a definite aim"). Omission of the requested "merely incidental" language did not impair Lebowitz's ability to present an effective defense, and the district court did not abuse its discretion.
Lebowitz requested that the jury be instructed that "Defendant must have [believed K.S. was under 18 years of age] during the time he was using a computer to communicate with [K.S.]"
The jury's questions do not create the "substantial and eradicable doubt" required for reversal of its verdict. See Browne, 505 F.3d at 1276. The subject matter of Lebowitz's requested instruction was substantially covered by the district court's overall charge to the jury. Further, the district court's refusal to give the requested instruction did not impair Lebowitz's ability to present his defense. The district court did not abuse its discretion.
Lebowitz challenges both the procedural and substantive reasonableness of his sentence. We review a district court's factual findings for clear error, and its interpretation and application of the Guidelines de novo. United States v. Doe, 661 F.3d 550, 565 (11th Cir.2011). We review the reasonableness of a sentence under an abuse-of-discretion standard. United States v. Irey, 612 F.3d 1160, 1188-89 (11th Cir.2010) (en banc), cert. denied, ___ U.S. ___, 131 S.Ct. 1813, 179 L.Ed.2d 772 (2011).
Lebowitz argues that the district court erred in calculating the Guidelines
Lebowitz argues that the sentencing court abused its discretion by: (1) considering Lebowitz's HIV-positive status; (2) failing to adequately consider mitigation evidence; and (3) imposing an unreasonable sentence. Lebowitz has the burden of showing that the sentence was unreasonable in light of the record and the § 3553(a) factors. United States v. Talley, 431 F.3d 784, 788 (11th Cir.2005). Those factors include, among other things: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (3) the need for deterrence; (4) the need to protect the public from further crimes committed by the defendant; and (5) the Guidelines range. 18 U.S.C. § 3553(a). "A district court abuses its discretion when it (1) fails to afford consideration to relevant factors that were due significant weight, (2) gives significant weight to an improper or irrelevant factor, or (3) commits a clear error of judgment in considering the proper factors." Irey, 612 F.3d at 1189 (quotation omitted).
We will reverse a sentence as substantively unreasonable only if we are "left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case." Id. at 1190 (quotation omitted). Although we do not presume that a sentence within the Guidelines range is reasonable, United States v. Hunt, 526 F.3d 739, 746 (11th Cir.2008), we ordinarily expect such a sentence to be reasonable. Talley, 431 F.3d at 788.
Lebowitz fails to demonstrate that his sentence is substantively unreasonable. Lebowitz's clandestine exposure of his minor victims to even a minimal risk of HIV infection was a circumstance of his offense conduct. Because Lebowitz's HIV status was relevant to his offense conduct, it was properly considered by the district court. As for the mitigation evidence offered by Lebowitz, the record demonstrates that the sentencing court did consider Lebowitz's "history of having done many good things," and that Lebowitz's conduct was not the "most extreme" the district court had seen. A lack of a downward variance alone does not demonstrate that the district court failed to afford consideration to these factors. See United States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008) ("[T]he weight to be accorded any given § 3553(a) factor is a matter committed to the sound discretion of the district court." (quotation marks omitted)); United States v. Bungar, 478 F.3d 540, 546 (3d Cir.2007) ("[A] district court's failure to give mitigating factors the weight a defendant
Finally, Lebowitz fails to demonstrate that his within-Guidelines, 320-month total sentence was a clear error of judgment. "Child sex crimes are among the most egregious and despicable of societal and criminal offenses...." Sarras, 575 F.3d at 1220. Lebowitz sexually assaulted C.R. when C.R. was only 15 years old, produced child pornography with C.R. when C.R. was 16 years old, distributed that child pornography over the internet, and attempted to sexually assault another 15-year-old boy. The district court carefully balanced these heinous crimes against Lebowitz's lack of criminal history and admirable work as a paramedic and a doctor. Lebowitz's concurrent terms of 320 months' imprisonment do not fall outside the range of reasonable sentences from which the district court could permissibly choose. See Irey, 612 F.3d at 1189. Accordingly, we affirm Lebowitz's sentences.
For the reasons stated above, we reject Lebowitz's challenges to his convictions and sentences. The judgment of the district court is affirmed.
