United States v. Barry Gabelman

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 16, 2025
• Docket: 23-10023
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 16 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-10023 D.C. No. 2:20-cr-00019-JCM-NJK-1 Plaintiff-Appellee,

v. MEMORANDUM* BARRY ALLEN GABELMAN,

Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding

Submitted May 14, 2025** San Francisco, California

Before: BEA and DE ALBA, Circuit Judges, and BROWN, District Judge.***

Defendant-Appellant Barry Gabelman appeals his conviction under 18

U.S.C. § 2422(b) and sentence of 292 months’ imprisonment, lifetime supervision,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Jeffrey Vincent Brown, United States District Judge for the Southern District of Texas, sitting by designation.

1 23-10023 and $5,000 Justice for Victims of Trafficking Act (“JTVA”) fine. Gabelman seeks

reversal of his conviction and a judgment of acquittal on legal-sufficiency grounds.

In the alternative, he seeks reversal of his sentence and remand for resentencing due

to procedural sentencing errors. The parties are familiar with the facts, so we recount

them only as necessary to provide context to our ruling. We have jurisdiction under

28 U.S.C. § 1291, and we affirm Gabelman’s conviction and reverse and remand for

resentencing.

“Where preserved, [w]e review de novo the denial of a motion for acquittal”

under Fed. R. Crim. P. 29. United States v. Door, 996 F.3d 606, 616 (9th Cir. 2021)

(quotations and citation omitted). The court (1) considers the trial evidence in the

light most favorable to the prosecution and presumes the trier of fact resolved all

conflicts in the government’s favor, then (2) determines whether this evidence would

permit a rational trier of fact to find the crime’s essential elements beyond a

reasonable doubt. United States v. Nevils, 598 F.3d 1158, 1163–64 (9th Cir. 2010)

(en banc).

Gabelman challenges his conviction on legal-sufficiency grounds. He argues

the government failed to establish mens rea under § 2422(b) because he testified that

he contacted and tried to meet Ellie, a minor, only to bring Ellie’s father Cam to

justice for trafficking her online.

2 23-10023 There was ample evidence at trial to support the verdict. Gabelman took

numerous substantial steps in his (1) explicit and repeated communications with 11-

year-old Ellie and her father about the sexual acts Gabelman wished to perform on

her and to obtain images of her genitals, and (2) arrangement to meet with her for

sex. See United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (“[W]hen a

defendant initiates conversation with a minor, describes the sexual acts that he would

like to perform on the minor, and proposes a rendezvous to perform those acts, he

has crossed the line toward persuading, inducing, enticing, or coercing a minor to

engage in unlawful sexual activity.”). A rational trier of fact could have found the

crime’s essential elements beyond a reasonable doubt, considering the extensive

record of communications among Gabelman, Ellie, and Cam, along with

Gabelman’s arrival at the rendezvous spot with a condom, then telling officers he

was there only to buy a trailer—not to rescue Ellie. The jury seemingly discredited

Gabelman’s self-serving testimony regarding his state of mind in favor of the

prosecution’s overwhelming evidence. See United States v. Selby, 557 F.3d 968, 976

(9th Cir. 2009) (“[A] trier of fact is not compelled to accept and believe the self

serving stories of vitally interested defendants.” (citation omitted)).

When, as here, there is sufficient evidence to support the verdict in the trial

record, it is not for this court to second guess the jury’s weighing of the evidence

and assessment of witness credibility. See Jones v. Wood, 114 F.3d 1002, 1008 (9th

3 23-10023 Cir. 1997) (stating the court “respect[s] the province of the jury” and does not

independently assess witness credibility (citation omitted)). Because the trial record

lacks any error justifying acquittal, we affirm Gabelman’s conviction under

§ 2422(b).

Gabelman argues even if his conviction stands, he should be resentenced due

to procedural errors the district court committed at sentencing. The district court

found Gabelman intentionally offered false testimony and applied the obstruction

enhancement under U.S.S.G. § 3C1.1. But before the district court may adjust a

defendant’s sentence for obstruction of justice, it must find that the defendant

willfully gave false testimony on a material matter. United States v. Jimenez-Ortega,

472 F.3d 1102, 1103 (9th Cir. 2007). The government concedes the district court did

not make the requisite finding that Gabelman’s false testimony was material, and we

agree. We remand to the district court to make the proper findings for an

enhancement under U.S.S.G. § 3C1.1. In doing so, the court may consider the other

procedural errors the defendant has alleged. See, e.g., United States v. Johnson, 812

F.3d 757, 765–66 (9th Cir. 2016) (reversing for failure to make a finding of

materiality and declining to reach defendant’s additional challenges to his sentence).

AFFIRMED IN PART, REVERSED AND REMANDED IN PART.

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