[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT 05/18/99 No. 97-3552 THOMAS K. KAHN ________________________ CLERK
D. C. Docket No. 97-140-CR-ORL-18
UNITED STATES OF AMERICA, Plaintiff-Appellee,
versus
BILLY CHARLES BURGESS, a.k.a. Brad, a.k.a. Landofahz, Defendant-Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida _________________________ (May 18, 1999)
Before BARKETT, Circuit Judge, and KRAVITCH and MAGILL*, Senior Circuit Judges.
BARKETT, Circuit Judge:
Billy Burgess appeals his conviction and sentence on charges arising from arrangements
he made to rendezvous for sexual purposes in another state with a person he met over the
internet
and whom he knew only as “Maggie284,” a thirteen-year-old girl. Burgess alleges multiple
constitutional errors relating to his indictment and conviction under 18 U.S.C. §§ 2423(b) &
____________________ *Honorable Frank J. Magill, Senior U.S. Circuit Judge for the Eighth Circuit, sitting by designation. 2422(b), including violations of his First, Fifth, and Sixth Amendment rights, and also argues
that the district court acted arbitrarily and capriciously by establishing his base offense level at
twenty rather than at fifteen, which is the level set by the United States Sentencing Guidelines
(“U.S.S.G.”) for the crime of statutory rape. See U.S.S.G. § 2A3.2. We reverse.
I. Background
At approximately 11 p.m. on Sunday, March 30, 1997, Billy Burgess logged onto an
America Online sexually-oriented internet “chatroom” for men interested in “barely legal
females.” Using the screen name “LandofAhz,” Burgess exchanged sexually explicit messages
until close to midnight with another chatroom participant identified by the screen name of
Maggie284. Maggie284 described herself as a thirteen-year-old girl, but in reality was a twenty-
six-year-old man named Randall Sluder, who had created Maggie284 with the intention of
identifying and reporting to the authorities individuals who use the internet to engage in
“cybersex” with underage teenagers.1 Throughout this conversation, Maggie284 referred
repeatedly to her “Mom,” misspelled words, and frequently mentioned her age, weight (ninety-
two pounds), and inexperience. At some point during the exchange, LandofAhz told Maggie284
that in two weeks’ time he was scheduled to be in Orlando, where Maggie284 claimed to live,
and suggested that they meet in person. Burgess asked Maggie284 what clothing size she wore
and, on learning it was size ten, told her he would arrive in a limousine bearing lingerie in her
1 Sluder was on probation at the time for the felony of fleeing and attempting to elude a police officer.
2 size, champagne, and other gifts. Maggie284 asked him to “email me,” and Burgess promised to
do so, although after he logged off he made no effort to initiate further interaction.
Sluder subsequently printed out the conversation between Maggie284 and LandofAhz
and delivered it to the police. The officers then took over the “identity” of Maggie284 and, just
before noon on Monday, April 14, e-mailed Burgess, asking if he was still planning to come to
Orlando. Burgess answered in the affirmative. Over the next few days, Burgess and Maggie284
exchanged e-mails, and ultimately arranged a meeting at 8 p.m. on April 16, 1997 behind the
Enterprise Hotel in Orlando. As part of these arrangements, Maggie284 e-mailed Burgess a
phone number where she could be reached, a number that in reality connected to an undercover
telephone at the Kissimmee Police Department. At the specified time, Burgess called the
number, and a police officer who often worked undercover as a child answered the phone.
Speaking in a manner consistent with that of a thirteen-year-old girl, the officer confirmed the
meeting time and place, and Burgess reiterated his promise to be driving a limousine. During
this conversation, Burgess again asked what size clothing he should buy, and was told size
twelve. Meanwhile, the police subpoenaed the records of America Online, which disclosed that
the screen name “LandofAhz” was assigned to B.C. Burgess of Kansas City, Missouri. On the
evening of April 16, 1997, Burgess arrived in Orlando and made his way to the Enterprise Hotel
in a rented Lincoln Town Car, bearing no champagne, lingerie, or gifts of any kind. At
approximately 8:10 p.m., moments after he pulled into the parking lot, he was arrested.
Burgess was initially charged under Florida law with soliciting a minor. These charges
were eventually dropped, and Burgess was charged in federal court under a superceding
indictment with one count of traveling in interstate commerce with intent to engage in a sexual
3 act with a juvenile in violation of 18 U.S.C. § 2423(b), and two counts of using a facility
affecting interstate commerce knowingly to entice a juvenile to engage in sexual acts in violation
of 18 U.S.C. § 2422(b).2 At trial, Burgess's attorney requested that the court instruct the jury that
no adverse inference could be drawn from Burgess's decision not to testify. At the close of the
charge, the court asked if either side had any objections, and defense counsel objected that the
requested cautionary instruction had been omitted from the charge. The court responded that it
had been included “in about the third instruction,” to which Burgess’s attorney replied, “I didn’t
hear that. But if you gave it, I apologize.” The district court did not order any portion of the
charge read back to confirm its belief that the requested instruction had been read, and it was
later shown that the instruction had in fact been omitted.
The jury spent five hours deliberating after the two-day trial. During the course of its
deliberations, the jury sent a question to the judge, asking for further instruction on the law of
entrapment. The judge responded that “[t]he law on entrapment is correctly before you.”
2 The statutes under which Burgess was charged read: (b) Travel with intent to engage in sexual act with a juvenile. – A person who travels in interstate commerce, or conspires to do so . . . for the purpose of engaging in any sexual act (as defined in section 2246) with a person under 18 years of age that would be in violation of chapter 109A if the sexual act occurred in the special maritime and territorial jurisdiction of the United States shall be fined under this title, imprisoned not more than ten years, or both. 18 U.S.C. § 2423 (b) Whoever, using any facility or means of interstate or foreign commerce, including the mail, 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 act for which any person may be criminally prosecuted, or attempts to do so, shall be fined under this title or imprisoned not more than ten years, or both. 18 U.S.C. § 2422.
4 Burgess was convicted on all counts. At sentencing, defense counsel analogized Burgess's
offense to statutory rape and argued that the base offense level should be set at fifteen. See
U.S.S.G. § 2A3.2 (establishing a base offense level of fifteen for the crime of statutory rape).
The prosecution, labeling Burgess’s crime as one of violence, argued that the appropriate base
offense level was twenty-seven. See U.S.S.G. § 2A3.1 (establishing a base offense level of
twenty-seven for the crime of sexual abuse involving intent to use force, threat of death, serious
bodily injury or kidnapping). The district court set the base offense level at twenty, and
sentenced Burgess to thirty-three months’ imprisonment, two years of supervised release, and a
$300.00 special assessment, plus the cost of incarceration. Burgess now appeals his conviction
and sentence.
II. Discussion
Burgess raises a host of arguments on appeal. However, because we find that the district
court committed reversible error when it failed to deliver the requested cautionary instruction
regarding Burgess’s decision not to testify, we address this claim only.3
In Carter v. Kentucky, 450 U.S. 288 (1981), the Supreme Court held that “the Fifth
Amendment requires that a criminal trial judge must give a ‘no-adverse-inference’ jury
instruction when requested by a defendant to do so.”4 Id. at 300; see also United States v. Russo,
3 We do, however, note that at oral argument the government was unable to provide any support for its analogy of Burgess’s crime to sexual abuse involving intent to use force, threat of death, serious bodily injury or kidnapping. See U.S.S.G. § 2A3.1. We are thus hard pressed to see any reason why the appropriate analogy for sentencing purposes for the crime here committed would not have been statutory rape. See U.S.S.G. § 2A3.2. 4 The Supreme Court has also held that this same obligation is imposed on the courts by federal statute. See Bruno v. United States, 308 U.S. 287, 292-93 (1939) (holding that defendants have the right under 18 U.S.C. § 3481 to request and receive a cautionary instruction
5 796 F.2d 1443, 1454 (11th Cir. 1986) (applying the rule established in Carter); United States v.
Richardson, 764 F.2d 1514, 1529 (11th Cir. 1985) (“The jury must be told to draw no adverse
inference from a refusal to testify; defendants may have that instruction as of right.”) (citing
Carter, 450 U.S. at 301).
The government concedes this point. It further concedes, as it must, that despite
Burgess’s timely request, the district court included no such cautionary instruction in the jury
charge, and that Burgess’s counsel timely raised an objection to this omission. The government
nonetheless argues that Burgess is entitled to no relief on this claim because, even though the
instruction was properly requested and its omission properly raised, Burgess’s attorney did not
press the point any further after the court said the requested instruction had been given.
The law is clear that, to be given effect, “an objection must be framed with precision
sufficient to inform the trial judge as to the matter about which the objection is raised and the
grounds therefor.” United States v. Haynes, 573 F.2d 236, 241 (5th Cir. 1978)5; see also United
States v. Greenfield, 554 F.2d 179, 186 (5th Cir. 1977) (“The trial court must be apprised of the
basis for objection with sufficient particularity to allow an informed decision to be made on the
legal issue involved.”). The idea behind this requirement is that the district court should be
that failure to testify in one’s own defense creates no negative presumption); United States v. Bain, 596 F.2d 120, 122 (5th Cir. 1979) (same). 5 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
6 given “the chance to correct errors before the case goes to the jury.” United States v. Sirang, 70
F.3d 588, 594 (11th Cir. 1995).
Burgess’s attorney properly requested that the jury be instructed to draw no adverse
inference from Burgess’s decision not to testify. After delivery of the jury charge, Burgess’s
attorney objected that despite this earlier request, the court still had failed to instruct the jury on
this matter. The court responded that it believed the instruction had been included. The
government’s assertion that the defense failed to meet its burden of raising a sufficient objection
thus hinges on the claim that, even though the defendant had timely requested the instruction and
had timely objected when it was not given, defense counsel should have insisted that the court
read back the charge to confirm that it in fact had been delivered. We find this argument
unpersuasive. From the exchange that ensued after the defense first raised the issue, it is clear
that the court had understood the substance of the objection and had “the chance to correct the
error before the case [went] to the jury.” Sirang, 70 F.3d at 594. The defense therefore met its
burden and preserved the objection for appeal.
Although the district court may have intended to give the instruction, the court failed to
ensure that it had been given when the omission was brought to the court’s attention, and the
importance of the Fifth Amendment protection afforded by a “no-adverse-inference” instruction
is not diminished in such circumstances. “Jurors are not experts in legal principles; to function
effectively, and justly, they must be accurately instructed in the law.” Carter, 450 U.S. at 302.
And, because “‘[t]oo many, even those who should be better advised, view [the Fifth
Amendment] privilege as a shelter for wrongdoers [and] too readily assume that those who
invoke it are . . . guilty of crime,’ . . . [s]uch instructions are perhaps nowhere more important
7 than in the context of the Fifth Amendment privilege against compulsory self-incrimination.” Id.
(quoting Ullman v. United States, 350 U.S. 422, 426 (1956)). Once Burgess timely requested the
instruction and raised an objection sufficient to put the court on notice of its omission from the
jury charge, it fell to the court to correct the error. Not even the good faith belief that no error
had occurred relieves the court of this obligation. The court elected not to pursue the matter
further, and the defense is not required to pay the price of that decision.
In the alternative, the government argues that, because the district court thoroughly
instructed the jurors concerning the presumption of innocence and the burden of proof, the harm
of failing to deliver the requested “no-adverse-inference” instruction is somehow overcome. The
Supreme Court, however, has flatly rejected this argument. See Carter, 450 U.S. at 304 (“The
other trial instructions and arguments of counsel [regarding the presumption of innocence and
the burden of proof] were no substitute for the explicit [no-adverse-inference] instruction that the
petitioner’s lawyer requested.”).
We turn now to the question of the appropriate remedy. In United States v. Bain, 596
F.2d 120 (5th Cir. 1979), the former Fifth Circuit held that a court’s failure to honor its
obligation to deliver a requested no-adverse-inference instruction “rises to the level of reversible
error.” Id. at 122 (following Bruno v. United States, 308 U.S. 287 (1939), in holding that courts
are required under federal statute6 to deliver such an instruction when so requested by the
defendant). However, Supreme Court precedent decided post-Bain requires that we decline to
follow Bain insofar as it requires automatic reversal of the judgment in this case. See Cottrell v.
6 See 18 U.S.C. § 3481 (“In trial of all persons charged with the commission of offenses against the United States . . . the person charged shall, at his own request, be a competent witness. His failure to make such a request shall not create any presumption against him.”).
8 Caldwell, 85 F.3d 1480, 1485 (11th Cir. 1996) (“Where prior panel precedent conflicts with a
subsequent Supreme Court decision, we follow the Supreme Court decision.”). In Arizona v.
Fulminante, 499 U.S. 279 (1991), the Court established the circumstances under which courts
are to apply the constitutional harmless error standard. In that case, the Court identified certain
“structural defects” – among them “the total deprivation of the right to counsel” and “a judge
who was not impartial” – which affect “the entire conduct of the trial from beginning to end,”
Fulminante, 499 U.S. at 309, and distinguished such defects from “trial error[s]” which occur
“during the presentation of the case to the jury.” Id. at 307. The Court explained that, although
errors rising to the level of structural defects “defy analysis by ‘harmless error’ standards,” id. at
309,7 trial errors may “be quantitatively assessed in the context of other evidence presented in
order to determine whether [they were] harmless beyond a reasonable doubt.” Id. at 307-08.
Fulminante thus requires that, in the event of trial error, we apply the harmless error standard to
determine whether the commission of that error demands that the conviction be reversed.
Although the Court has not had occasion to classify the precise error at issue here, we
believe that under the terms set out in Fulminante, the failure of a court upon proper request to
deliver a no-adverse-inference instruction would be classified as a “classic ‘trial error,’” id. at
309, able to “be quantitatively assessed in the context of other evidence presented in order to
determine whether its admission was harmless beyond a reasonable doubt.” Id. at 307-08. Not
only have “most constitutional errors . . . been held amenable to harmless-error analysis,”
7 See also Fulminante, 499 U.S. at 310 (“‘Without these basic protections, a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.’”) (quoting Rose v. Clark, 478 U.S. 570, 577-78 (1986)).
9 Sullivan v. Louisiana, 508 U.S. 275, 279 (1993) (citing Fulminante), but the Court held in
Kentucky v. Whorton, 441 U.S.786, 789-90 (1979), that the trial court’s failure upon proper
request to instruct the jury on the presumption of innocence was appropriately subject to
harmless error analysis. See also Fulminante, 499 U.S. at 306-07 (including Whorton among the
many cases cited to demonstrate the “wide range of errors” to which “the Court has applied
harmless-error analysis”). Serious error though it is, a court’s failure to deliver a requested no-
adverse-inference instruction does not rise to the level of an error like the “total deprivation of
the right to counsel,” in the face of which “‘no criminal punishment may be regarded as
fundamentally fair.’” Fulminante, 499 U.S. at 310 (quoting Rose, 478 U.S. at 578). This factor,
considered alongside the Court’s discussion in Fulminante and its holding in Whorton, leads us
to conclude that a trial court’s failure to deliver a requested “no-adverse-inference” instruction
must be analyzed under the standard of constitutional harmless error. We therefore believe that
superceding Supreme Court precedent requires that we decline to follow Bain to the extent it
holds that a verdict reached following the commission of such a constitutional error is
automatically subject to reversal.8
In Chapman v. California, 386 U.S. 18 (1967), the Court held that “before a federal
constitutional error can be held harmless, the court must be able to declare a belief that it was
harmless beyond a reasonable doubt.” Id. at 24. In other words, “the court must be convinced
beyond a reasonable doubt that the error did not contribute to the defendant's conviction.” Cape
v. Francis, 741 F.2d 1287, 1294 (11th Cir. 1984) (citing Chapman). As Justice Scalia explained
8 Because no statutory argument was raised on appeal, we do not decide whether harmless error review is also appropriate for like violations of § 3481.
10 in Sullivan v. Louisiana, 508 U.S. 275 (1993), the inquiry “is not whether, in a trial that occurred
without the error, a guilty verdict would surely have been rendered, but whether the guilty
verdict actually rendered in this trial was surely unattributable to the error.” Id. at 279 (emphasis
in the original). This Court has understood this inquiry to require that we “review the facts of
the case and the evidence adduced at trial to determine . . . whether, absent the so-determined
unconstitutional effect, the evidence remains not only sufficient to support the verdict but so
overwhelming as to establish the guilt of the accused beyond a reasonable doubt.” Cape, 741
F.2d at 1294 (internal quotation marks and citations omitted).
After thorough examination of the record before us, we find ourselves unable to conclude
that the evidence adduced in this case was “not only sufficient to support the verdict but so
overwhelming as to establish the guilt of the accused beyond a reasonable doubt.” Id. As a
result, we are not convinced beyond a reasonable doubt that the district court’s error in failing to
deliver the requested cautionary instruction did not contribute to the conviction.
Two elements of the government’s case at trial were supported by evidence arguably
insufficient to overcome Chapman’s harmless error standard and would have led to an acquittal
had they been resolved differently by the jury: the rebuttal of Burgess’s entrapment defense,9 and
9 It is well settled that, “[w]here the Government has induced an individual to break the law and the defense of entrapment is at issue, . . . the prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents.” United States v. Jacobson, 503 U.S. 540, 548-49 (1992); see also United States v. Chirinos, 112 F.3d 1089, 1102 (11th Cir. 1997) (“A defendant is not entitled to an entrapment instruction unless he first shows ‘some evidence, more than a scintilla, that government agents induced him to commit the offense.’ Once the defendant meets this initial burden, ‘the question of entrapment becomes a factual one for the jury to decide. In that situation the defendant is entitled to have his defensive theory of the case put before the jury with the appropriate instructions from the trial judge.’”) (quoting United States v. Timberlake, 559 F.2d 1375, 1379 (5th Cir.1977)).
11 the intent requirement for violations of §§ 2423(b) & 2422(b), which here required a finding that
Burgess believed that Maggie284 really was a thirteen-year-old girl and not simply an adult
playing that role. Consideration of the evidence adduced at trial as to the first of these two
elements – the government’s rebuttal of Burgess’s entrapment defense – is sufficient to convince
us that the trial error in question was not harmless beyond a reasonable doubt. Cape, 741 F.2d
at 1294. For, although the jury found against Burgess on the entrapment issue, there was
evidence before the jury sufficient to rebut the suggestion that the evidence against him on this
issue was “overwhelming,” and thus we cannot say beyond a reasonable doubt that the jury
verdict was not affected by the trial court’s failure to give a no-adverse-inference instruction.
See id. As the jury instruction reflected, “[a] person is entrapped when he is induced or
persuaded by law enforcement officers or their agents to commit a crime that he had no previous
intent to commit.” And as was shown by the evidence at trial, despite Burgess’s promise at the
end of the initial internet encounter to email Maggie284 soon, after he logged off he initiated no
further contact. In fact, it was not until the Kissimmee police posed as Maggie284 and
themselves renewed contact on April 14, asking whether Burgess “was still coming to Orlando
soon,” that Burgess and “Maggie” began making arrangements to meet. That Burgess did not
initiate contact after the initial exchange represents evidence to support the conclusion that he
had no intention at that time of actually trying to meet Maggie284 in person, and that he would
not have committed the crime had the police not induced him to do so.10
10 The jury also knew that Randall Sluder was on probation at the time he embarked on his mission to root out adults using the internet to solicit sex with minors, a fact which might have raised a question as to Sluder’s claim that he was acting independently at the time, and thus as to whether Burgess’s initial contact with Maggie284 was orchestrated by an “agent” of the police.
12 That the evidence that Burgess was not entrapped was less than “overwhelming” was
clearly demonstrated by the behavior of the jury. The single communication made to the court
by the jury during the course of its deliberations was a request for further instruction on the law
of entrapment. Specifically, the foreman wrote: “Need clarification on entrapment, the jury
instruction seems contradictory. There is some reasonable doubt that the Defendant would have
pursued this further if the police did not send the first E-mail on 4/11/97, is this nothing more
than the Govt. offering an opportunity.”11
These factors, and the jury’s question in particular, indicate that the members of the jury
did not find the evidence that Burgess had not been entrapped to be “overwhelming,” see Cape,
742 F.2d 1294, and that in fact they had doubts about its sufficiency. These doubts might well
have been resolved one way or the other had Burgess himself testified. It is thus not
unreasonable to imagine that the jurors, not having been instructed to draw no adverse inference
from Burgess’s decision not to testify, resolved their doubts against him because of his failure to
take the stand in his own defense. It is therefore impossible to say that “the guilty verdict
actually rendered in this trial was surely unattributable to the error,” Sullivan, 508 U.S. at 279,
and thus that the district court’s failure upon proper request to deliver a cautionary instruction to
the jury regarding the defendant’s right not to testify was harmless beyond a reasonable doubt.
There is also a question whether the evidence adduced at trial as to the second
questionable element of the government’s case – whether Burgess really believed Maggie284 to
be underage – was of sufficient strength to overcome the Chapman standard for the harmlessness
11 To this, the court responded: “The law on entrapment is correctly before you. If you perceive a contradiction you must collectively resolve it.”
13 of constitutional error.12 Although the jury’s verdict indicated a finding against Burgess on the
question of intent, the jury also had before it evidence tending to suggest that Burgess did not
really believe that Maggie284 was a thirteen-year-old girl, including the fact that at least two of
the contacts between Burgess and Maggie284 were made at times – between 11 p.m. and
midnight on a school night, and 11:46 a.m. on a school day – that a thirteen-year-old would be
unlikely to be surfing the internet; and the fact that Burgess asked on two separate occasions
what size clothing Maggie wore, and was given two different answers, of which both – size ten
and size twelve – reflected sizes more commonly worn by adult women than by ninety-two-
pound girls. We need not, however, determine whether the weight of this countervailing
evidence on the question of intent was sufficient to overcome Chapman’s harmless error
standard, because our review of the facts of the case and the evidence adduced at trial as to the
entrapment issue leads us to conclude that the error committed in this case was not harmless
beyond a reasonable doubt.
Accordingly, we hereby REVERSE Burgess’s conviction, VACATE his sentence, and
remand this case to the district court for further proceedings consistent herewith.
12 Upon retrial, the district court and the parties would do well to address the effect of the Supreme Court’s decision in United States v. X-Citement Video, Inc., 115 S. Ct. 464 (1994), on the statutes at issue in this case. By resolving whether these statutes require Burgess to have known or believed that Maggie284 was under the age of eighteen, the district court will be in a better position to resolve the parties’ differences over the phrasing of the jury instructions, the evidence required to support a conviction, and the constitutional implications of Burgess’s prosecution.