Case: 13-11904   Date Filed: 02/04/2014   Page: 1 of 7


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-11904
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 1:12-cr-00014-MW-GRJ-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

BRANDON EDWARD SIMMONS,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      ________________________

                            (February 4, 2014)

Before HULL, MARCUS and BLACK, Circuit Judges.

PER CURIAM:
                Case: 13-11904        Date Filed: 02/04/2014       Page: 2 of 7


       Brandon Edward Simmons appeals his conviction for attempted enticement

of a minor to engage in illegal sexual activity, in violation of 18 U.S.C. § 2422(b).

Simmons raises multiple claims of error. First, he contends the evidence was

insufficient to show that he believed he was communicating with a minor or that he

attempted to entice her to in engage in sexual activity. Simmons also argues the

Government entrapped him and otherwise engaged in “outrageous conduct”

throughout its investigation. Finally, Simmons also challenges the district court’s

admission of certain evidence. Upon review, we reject Simmons’ arguments and

affirm his conviction.

A.     Sufficiency of the Evidence1

       In arguing that the evidence was insufficient to support his conviction,

Simmons points to a number of facts he contends undermine the Government’s

case. For example, Simmons argues a text message he sent on his way to meet

“Rebecca,” the fictitious “victim” invented by the Government as part of its

investigation, demonstrates that he did not believe she was a minor. Specifically,

Simmons set “Rebecca” a text that read, “I’m just surprised that you’re 18 and you

still haven’t had sex.” He also points to an adults-only notice posted on the

website through which he communicated with “Rebecca.” However, in their


       1
        We review de novo whether evidence is sufficient to support a conviction, drawing all
reasonable factual inferences from the evidence in favor of the verdict. United States v. Beckles,

, 840 (11th Cir. 2009).
                                                2
                 Case: 13-11904      Date Filed: 02/04/2014      Page: 3 of 7


second communication, “Rebecca” told Simmons that she was 14 years old and

asked whether that was okay. Simmons responded that it was and that he

“connect[ed] better with younger people.” On various occasions, Simmons also

asked “Rebecca” why she was not in school at a given time, what grade she was

in,2 or why she was up so late. These facts provided a sufficient basis for the

jury’s finding that Simmons believed “Rebecca” was a minor. The countervailing

facts Simmons emphasizes show merely that the jury might have reached other

reasonable results. They do not show that no reasonable jury could have convicted

Simmons, which is the standard required for a sufficiency-of-the-evidence

challenge. 

      Similar reasoning applies to Simmons argument that the evidence was

insufficient to show that he attempted to entice “Rebecca.” Simmons suggests that

evidence shows that “Rebecca” was, in fact, enticing him rather than the other way

around. However, early in their communications, “Rebecca” expressed concern

about her age and sexual inexperience. Simmons assured “Rebecca” that her age

was not a problem and that he would “love to help teach” her about sex. These

sorts of assurances are a sufficient form of enticement under § 2422(b). See United

States v. Yost, 

, 819-20 (11th Cir. 2007). Accordingly, even if other

reasonable interpretations of the evidence were impossible, Simmons has not


      2
          “Rebecca” told Simmons that she was in eighth grade.
                                               3
                 Case: 13-11904         Date Filed: 02/04/2014         Page: 4 of 7


shown that a reasonable jury could not have convicted him beyond a reasonable

doubt, and his sufficiency-of-the-evidence argument thus fails.

B.     Entrapment & Outrageous Conduct

       An entrapment defense requires (1) government inducement of the crime

and (2) the defendant’s lack of predisposition to commit the crime before the

inducement. United States v. Orisnord, 

, 1178 (11th Cir. 2007).

Because Simmons did not present entrapment or outrageous-conduct arguments to

the district court or rely them his motion for a judgment of acquittal, we review for

plain error. 3 United States v. Hunerlach, 

, 1068 (11th Cir. 1999).

       Simmons’ entrapment arguments fail because he has done no more than

show “the government’s mere suggestion of a crime or initiation of contact[,

which] is not enough.” United States v. Brown, 

, 623 (11th Cir. 1995).

Simmons’ Internet posting advertised his desire to participate in someone’s first

sexual experience, and when the Government responded as “Rebecca” and asked at

the outset whether it was okay that she was only 14 years old, Simmons responded

that he was “not concerned over age.” Simmons expressed enthusiasm at the

prospect of “teach[ing]” “Rebecca,” a fourteen year old, about sex in response to

her concerns about her inexperience. Thus, while the Government provided the


       3
          Plain error requires (1) an error, (2) that was plain, (3) affecting substantial rights, and
(4) that seriously affected the fairness, integrity, or public reputation of judicial proceedings.
United States v. Turner, 

, 1276 (11th Cir. 2007).
                                                   4
               Case: 13-11904     Date Filed: 02/04/2014    Page: 5 of 7


opportunity for Simmons to commit a crime, the evidence nevertheless

demonstrated Simmons’ own criminal predisposition, and Simmons cannot show

that this predisposition was the product of anything amounting to “excessive

pressure or manipulation of a non-criminal motive.” See id.; see also Jacobson v.

United States, 

, 549-50 (1992) (“[W]here the defendant is simply

provided with the opportunity to commit a crime, the entrapment defense is of little

use because the ready commission of the criminal act amply demonstrates the

defendant’s predisposition.”)

      Simmons’ claim of “outrageous conduct” is similarly unavailing. As a

preliminary matter, we have “never acknowledged the existence of the outrageous

government conduct doctrine,” United States v. Jayyousi, 

, 1111

(11th Cir. 2011), cert. denied, 

(2012), so it is doubtful that the district

court’s failure to overturn Simmons’ conviction based on outrageous government

conduct could constitute plain error. More fundamentally, Simmons has not shown

that the Government’s conduct was outrageous. Simmons’ argument that the

Government acted outrageously, which largely echoes his entrapment argument,

does not show any conduct that violates “fundamental fairness” or is “shocking to

[a] universal sense of justice.” United States v. Russell, 

, 432 (1973)

(internal quotation marks omitted). Accordingly, this argument also fails.




                                           5
                Case: 13-11904        Date Filed: 02/04/2014       Page: 6 of 7


C.     Evidentiary Objections

       Last, Simmons argues the district court’s admission of an exhibit consisting

of six-pages of notes of the police’s post-arrest interview with Simmons was a

prejudicial abuse of discretion.4 Simmons argues the interview notes, taken on a

prepared form, prejudiced him because they (1) suggested that Simmons spoke

with an actual child, (2) implied that Simmons lied because some of the answers

written contradicted each other, and (3) contained references to child pornography

even though there was no evidentiary connection between Simmons and any

pornographic material.

       Assuming the district court admitted the interview notes in error, this error

was harmless. The notes contained no incriminating evidence beyond the

otherwise-admissible answers Simmons gave in his post-arrest interview. The

notes’ reference to “Rebecca” as a “child” was not prejudicial because, given the

overall evidence, there was little chance the notes would cause the jury to believe

an actual child was involved in the case. Similarly, the references to child

pornography were likely not prejudicial, because the notes specifically indicate that

Simmons said he did not possess any child pornography. Last, there is no


       4
         We review evidentiary rulings for an abuse of discretion, United States v. Duran, 

, 1296 (11th Cir. 2010), and apply the harmless-error standard, United States v.
Henderson, 

, 1300 (11th Cir. 2005). An erroneous evidentiary ruling is prejudicial
(or not harmless) when it “ha[s] a substantial influence on the outcome of a case or leave[s]
grave doubt as to whether [it] affected the outcome of a case.” United States v. Frazier, 

, 1266 n.20 (11th Cir. 2004) (en banc) (internal quotation marks omitted).
                                                6
                Case: 13-11904   Date Filed: 02/04/2014   Page: 7 of 7


indication that the unspecified contradictions the notes attributed to Simmons

undermined his credibility and thereby substantially influenced the outcome of the

case. Consequently, nothing about the admission the exhibit calls the verdict into

grave doubt, and any error in its admission was harmless. See 

.

      AFFIRMED.




                                         7