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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-12623 ________________________
D.C. Docket No. 1:15-cr-00213-ELR-LTW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CRAIG ALAN CASTANEDA,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Georgia ________________________
(May 19, 2021)
Before WILLIAM PRYOR, Chief Judge, LUCK, and ED CARNES, Circuit Judges.
ED CARNES, Circuit Judge: USCA11 Case: 19-12623 Date Filed: 05/19/2021 Page: 2 of 28
This is another of those cases where a defendant propositions someone on
the internet in an attempt to sexually abuse a child, only to discover too late that
the person on the other end of the conversations is a law enforcement agent. See,
e.g., United States v. Deason, 965 F.3d 1252, 1256 (11th Cir. 2020).
Craig Castaneda was convicted of attempted enticement of a minor to
engage in unlawful sexual activity and traveling across a state line with the intent
to engage in sexual activity with a person under the age of 12 years. He was
sentenced to 420 months imprisonment. This is his appeal of those convictions
and sentence.
I.
Castaneda, who lived just south of San Diego, California, saw a Craigslist ad
from someone claiming to live in Atlanta, Georgia. The ad stated that it was
posted by a 37-year-old female with a 9-year-old child who was: “Looking for
someone with experience with REAL Taboo to be a good teacher! If you know
what i’m [sic] talking about reach out. . . . [N]o experience, don’t bother!!!”
Castaneda reached out. He began communicating with someone going by
the name of “Kandi,” first by email and then by another messaging application.
Castaneda’s first two emails to “Kandi” claimed that he was “experienced in what
you’re looking for,” meaning he had experience in “[i]ncest, pedophilia and
grooming” and “[e]xperience with my friend’s daughter (started at 4), and several
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younger cousins growing up.” He also stated that although he was “currently in
California, [he] could definitely make a visit [to Atlanta] for in person instruction.”
“Kandi” confirmed they were “on the same page,” that she had a 9-year-old
daughter, and that she was “wanting to learn more and looking for someone with
experience like you.”
Castaneda responded with a lengthy “first lesson” about how to sexually
abuse children; part of that “lesson” was the warning to “[b]e smart about how you
engage in this, the wrong move will lose you your daughter and put you on a sex
offender list, it’ll wreck your life.” He reaffirmed that he was “willing to come to
Atlanta” and asked for more information about “Kandi’s” daughter.
Castaneda soon began planning to fly from California to Georgia to help
“Kandi” sexually abuse the 9-year-old girl. As part of his planning, he asked
“Kandi” what “activity [the daughter] would love to do,” meaning “[s]omething
she will like, but not get to do often, like the zoo.” Castaneda asked that because
he wanted to build trust and develop a good relationship with the little girl and use
it, in his words, “to break the ice.” He also instructed “Kandi” that her “job with
[the daughter] at this stage is to build [Castaneda] up” and to let her daughter know
that his “visit and everything going well is VERY important to you personally and
you need her to be on her best behavior and do her best to contribute to my visit
being a success.” Another part of Castaneda’s planning was telling “Kandi” that
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on the first visit “there will likely be no penetration” of the child’s vagina because
that might hurt the child and that is “just one of those things they need to be
worked into.” Soon after that, Castaneda bought a plane ticket to Atlanta.
As it turned out, of course, “Kandi” was not the mother of a 9-year-old girl,
nor was there one. Instead, Castaneda was communicating with an undercover law
enforcement agent who had posted the Craigslist ad and was posing as “Kandi.”
Castaneda did not know that when he boarded a plane for Atlanta. In fact,
on the day his flight was scheduled he sent “Kandi” a message instructing her
about some items he wanted her to bring to their meeting, which was to take place
in the downtown area near a hotel where Castaneda had booked a room for two
nights. The items he wanted her to bring were “swim clothes and maybe a small
pocket rocket,” which is a sexual vibrator device, an additional sexual vibrator
device that Castaneda requested be “a smaller, smooth, non-phallic vibe,” and
sexual lubrication. He also instructed “Kandi” to wear her “Sunday best sort” of
clothes. When Castaneda got off the plane in Atlanta, he was arrested.
Castaneda was indicted for one count of attempting to entice a minor to
engage in unlawful sexual activity, in violation of 18 U.S.C. § 2422(b), and one
count of crossing a state line with the intent to engage in sexual activity with a
person under the age of 12 years, in violation of 18 U.S.C. § 2241(c). A jury found
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him guilty on both counts. The district court sentenced Castaneda to 420 months
imprisonment.
II.
Castaneda contends that his indictment should have been dismissed because
the government’s conduct in investigating him was so outrageous that it violated
his Fifth Amendment due process rights.
The theory behind the outrageous government conduct defense is that if a
defendant can show that the “law enforcement[] techniques [used] violate
‘fundamental fairness, [and are] shocking to the universal sense of justice,
mandated by the Due Process Clause of the Fifth Amendment,’” United States v.
Cannon, 987 F.3d 924, 941 (11th Cir. 2021) (quoting United States v. Russell, 411
U.S. 423, 432 (1973)), that ought to “bar the government from invoking judicial
processes to obtain a conviction,” Russell, 411 U.S. at 431–32.
Outrageous conduct is only a potential defense in this circuit because neither
the Supreme Court nor this Court has ever found it to actually apply and barred the
prosecution of any case based on it. See Cannon, 987 F.3d at 941–42 (noting that
“this defense has never succeeded here or in the Supreme Court” and that some of
our cases “state that because this Court has never actually reversed a conviction
based on outrageous government conduct, any discussion of it is merely dicta”);
United States v. Jayyousi, 657 F.3d 1085, 1111 (11th Cir. 2011) (“We have never
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applied the outrageous government conduct defense and have discussed it only in
dicta.”); United States v. Sanchez, 138 F.3d 1410, 1413 (11th Cir. 1998) (“While
the Supreme Court and this Court have recognized the possibility that government
involvement in a criminal scheme might be so pervasive that it would be a
constitutional violation, that standard has not yet been met in any case either before
the Supreme Court or this Court.”). Like the fabled creature Sasquatch, this
defense has entered the common consciousness and is mentioned from time to
time. Some claim to have caught fleeting glimpses of it in the remote backwoods
of the law, but its actual existence has never been confirmed.
The invariable way that consideration of an outrageous government conduct
defense has ended in the Supreme Court and in this Court is illustrated by what the
Supreme Court stated in its Russell decision: “While we may some day be
presented with a situation in which the conduct of law enforcement agents is so
outrageous that due process principles would absolutely bar the government from
invoking judicial processes to obtain a conviction, the instant case is distinctly not
of that breed.” Russell, 411 U.S. at 431–32 (citation omitted). And neither is this
case.
Castaneda contends that the government acted outrageously by exposing him
to child pornography in the course of its sting operation. Here’s how Castaneda
says that he was “exposed” to child pornography. At one point during the
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government’s undercover messaging with him, Castaneda requested a picture of
“Kandi,” the fictional mother of the fictional child he was planning to actually
sexually abuse if he could. The agent communicating with Castaneda responded to
his request for a picture of the mother by providing him with a link to a public
“MeetMe.com” online profile for Katrina Cox. Cox was a previously convicted
child pornographer cooperating with the government by allowing agents to use her
online identity and some of her accounts.
When he received the link to the profile for Cox, Castaneda decided not just
to look at her picture or communicate with her, but to go further. He decided to
use the information from Cox’s MeetMe.com profile to see what else he could
find. What he managed to find was a different website that listed an email address
similar to the one he had for “Kandi” as well as the password to that other email
address. Castaneda then used that information to log into the email account using
Cox’s password, and on that website he found child pornography. Castaneda made
that discovery while he was at work. He didn’t discard that child pornography but
instead downloaded it to his personal computer when he got home.
Castaneda moved to dismiss the indictment on outrageous government
conduct grounds. At a hearing on the motion, the government agents involved in
the undercover operation testified that: they had never come across, or heard of, the
email account that Castaneda had hacked into; they had never suggested to
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Castaneda he should hack into that email account or any other account; they had
never provided him with the password to that or any other email account, or with
permission to go into anyone’s email account; and they had not suggested to
Castaneda where he might find child pornography.
The magistrate judge issued a report that expressly found the testimony of
the agents to be credible and recommended that the motion to dismiss the
indictment be denied. As the government points out, Castaneda failed to object to
that part of the report. The district court “conducted a de novo review of those
portions of the [report] to which [Castaneda] object[ed] and [it] reviewed the
remainder of the [report] for plain error.” Under that standard of review, the court
adopted the report and recommendation in its entirety and denied the motion to
dismiss. Even though Castaneda did not object to the magistrate judge’s
conclusions about outrageous government conduct, he did not forfeit his right to
challenge the ruling on appeal because the magistrate judge did not inform him of
the consequences of failing to object to the report’s legal conclusions. See
Harrigan v. Metro Dade Police Dep’t Station #4, 977 F.3d 1185, 1191–92 (11th
Cir. 2020); 11th Cir. R. 3-1. In any event, his challenge fails on the merits.
“Generally, the district court’s denial of a motion to dismiss an indictment is
reviewed only for an abuse of discretion.” United States v. McPhee, 336 F.3d
1269, 1271 (11th Cir. 2003). But we have said that “[w]e review de novo the
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denial of a motion to dismiss based on outrageous government conduct.” Cannon,
987 F.3d at 941 n.6; see also United States v. Savage, 701 F.2d 867, 868 n.1 (11th
Cir. 1983) (explaining that whether the government’s conduct violated a
defendant’s due process rights “is a question of law”). Any associated
factfindings, however, are reviewed only for clear error. See United States v.
Trainor, 376 F.3d 1325, 1329 (11th Cir. 2004). Credibility findings get
particularly deferential treatment, and we accept them unless no reasonable
factfinder could. United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir.
2002).
The district court did not err in denying Castaneda’s motion to dismiss the
indictment. No law enforcement agent instructed or encouraged Castaneda to hack
into any email account, particularly one containing child pornography. No agent
instructed or encouraged Castaneda to download child pornography onto his home
computer. No agent exposed Castaneda to child pornography. He exposed himself
to it. And he put it on his home computer where he could expose himself to it
again and again in the future. As the government aptly argues in its brief:
Castaneda invokes the inapplicable tort doctrine of “danger invites rescue,” originally recognized in Wagner v. Int’l Railway Co., 133 N.E. 437 (N.Y. 1921) (Cardozo, J.), to argue the government forced his hand. But another tort doctrine from a Cardozo case, the famous Palsgraf decision, is far more instructive: the proximate cause of Castaneda’s exposure to child pornography is not any law enforcement officer’s action, but his own intervening decision to hack a private email account and examine its contents. See Palsgraf v. Long Island R. Co., 162 N.E. 9 USCA11 Case: 19-12623 Date Filed: 05/19/2021 Page: 10 of 28
99, 101 (N.Y. 1928) (Cardozo, C.J.); id. at 103–04 (Andrews, J., dissenting).
Br. of Appellee at 36 n.5. We agree.
As for law enforcement’s generic sting operation of posting a Craigslist ad
and communicating with Castaneda about his desire to abuse a child, there is no
legal basis for challenging as outrageous those commonplace, and common sense,
tactics. See, e.g., Deason, 965 F.3d at 1256; United States v. Gillis, 938 F.3d 1181,
1187–89 (11th Cir. 2019); United States v. Stahlman, 934 F.3d 1199, 1205–07
(11th Cir. 2019); United States v. Jockisch, 857 F.3d 1122, 1124–25 (11th Cir.
2017).
Given that the conduct of the government agents in this case was anything
but outrageous, we affirm the denial of Castaneda’s motion to dismiss the
indictment on outrageous conduct grounds. The hunt for Sasquatch will have to
continue in another case.
III.
Castaneda also contends that evidence of child pornography contained on
five of his computers should have been suppressed. Though Castaneda was not
indicted for or convicted of possession of child pornography, evidence that he
possessed it was used at trial to help prove his intent.
After Castaneda was arrested, he allowed two of his friends, Yolanda Cooley
and Casey Cousins, to live in his condominium in California. While they were 10 USCA11 Case: 19-12623 Date Filed: 05/19/2021 Page: 11 of 28
living there with Castaneda’s permission, about two months after his arrest,
Cousins inadvertently discovered child pornography on one of Castaneda’s
computers that was in the living room. Cousins discovered it after downloading a
television show to the computer; when he went into the part of the computer
containing downloaded files, he saw a file with “12-year-old” in the title. He
opened that file, a video, saw that it was child pornography, and then he closed the
video, “[t]urned off the computer, unplugged it, set it in the corner, and called Ms.
Cooley immediately.” Cousins and Cooley decided to inform FBI agents and turn
over to them that computer, along with the four others that were in Castaneda’s
condo. They made that decision out of concern that if they kept the computers,
they might be subject to prosecution for possessing child pornography.
Cooley, who had been interviewed by FBI Agent Brian Hamilton shortly
after Castaneda’s arrest, still had his contact information and used it arrange a
meeting with him. At that meeting with Hamilton and another FBI agent, Cooley
gave them all but one of the five computers. She had forgotten that one, but
Cousins gave it to Agent Hamilton a few days later. After receiving the five
computers, Agent Hamilton shipped them to FBI agents in Atlanta, who then
obtained a warrant to search all of them, and on two of the computers found
hundreds of images and videos of child pornography.
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Castaneda moved to suppress that evidence of child pornography. At the
hearing on that motion, Cousins and Cooley both testified that no FBI agents had
ever asked them to search Castaneda’s computers or do anything else to investigate
him. Likewise, Agent Hamilton testified that he had never asked Cooley for
assistance with investigating Castaneda and that he had never spoken to Cousins
before Cousins discovered the child pornography.
The magistrate judge issued a report recommending that the motion to
suppress be denied. The report recommended the district court find that Castaneda
had abandoned his arguments for suppression by failing to perfect them in post-
hearing briefing. It also recommended that even if the court considered
Castaneda’s “unperfected suppression motion, it would likely fail on the merits.”
That was so, the magistrate judge reasoned, because “[t]he Fourth Amendment
does not prevent unreasonable searches by private citizens,” like Cooley and
Cousins, who had not been encouraged by law enforcement to search the
computers or play any part in doing so. The magistrate judge expressly found that
“Cooley and Cousins credibly testified that they turned over the computers to the
FBI on their own initiative [and] for their own purpose because they were afraid
that they could be vulnerable to prosecution for their continued possession of the
computers in the residence.” And Agent Hamilton “credibly testified that he never
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asked Cooley to search any of [Castaneda’s] electronic devices and never asked for
Cooley’s assistance in the investigation.”
The magistrate judge’s report also recommended that the district court reject
Castaneda’s argument that there was no probable cause to search the computers,
because “Cousins was an eyewitness as to the illicit contents on [Castaneda’s]
computer and there is no known motivation for [Cousins] to lie about what he
found.” The district court overruled Castaneda’s objections to the report and
recommendation, adopted it, and in that manner denied the motion to suppress.
Castaneda contends that the district court should have granted his motion to
suppress the evidence of child pornography found on his computers. The
government counters that Castaneda forfeited the suppression issue by not
objecting to that part of the magistrate judge’s report and that, in any event, none
of his arguments for suppression has any merit. As mentioned, Castaneda did not
forfeit the issue because the magistrate judge did not inform him of the
consequences of failing to object to the legal conclusions in the report. See
Harrigan, 977 F.3d at 1191–92; 11th Cir. R. 3-1. But the government is correct
that Castaneda’s arguments have no merit.
Castaneda’s position is twofold. First, he argues that “[a]ny ‘voluntary’
surrender of Castaneda’s computers by Cousins or Cooley, and any purported
consent [he gave them] to search, was an insufficient basis to permit their search
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and seizure” because Castaneda had “revok[ed] any authority Cousins may have
had to surrender” them because he instructed Cousins not to give the computers to
law enforcement without first talking with Castaneda’s attorney. According to
Castaneda, “[b]ecause [he] held an expectation of privacy in the computers, any
action contrary to his wishes with respect to them lacked effective consent.” He
apparently means that because he did not want the FBI agents to have and search
his computers and never consented to the agents doing so, Cousins and Cooley
violated his constitutional rights when they handed the computers over to the
agents. In other words, he asserts that the evidence should be suppressed because,
based on Cooley’s and Cousins’ actions, the FBI agents unlawfully acquired the
computers in the first place.
The Fourth Amendment “is wholly inapplicable to a search or seizure, even
an unreasonable one, effected by a private individual not acting as an agent of the
Government or with the participation or knowledge of any governmental official.”
United States v. Jacobsen, 466 U.S. 109, 113 (1984) (quotation marks omitted);
accord United States v. Steiger, 318 F.3d 1039, 1045 (11th Cir. 2003) (“A search
by a private person does not implicate the Fourth Amendment unless he acts as an
instrument or agent of the government.”). Law enforcement agents may use in an
application for a search warrant information that is given to them by a private party
even if that private party unlawfully obtained the information. See Steiger, 318
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F.3d at 1041–46 (affirming the denial of a suppression motion when the search
warrant “was based in part on information from an anonymous source who hacked
into [the defendant’s] computer,” found child pornography, and informed law
enforcement); see also Burdeau v. McDowell, 256 U.S. 465, 474–75 (1921);
United States v. Mekjian, 505 F.2d 1320, 1327 (5th Cir. 1975) (“Burdeau . . . has
made it clear that the fourth amendment was intended as a restraint on the activities
of the government and its agents and is not addressed to actions, legal or illegal, of
private parties.”) (emphasis added) (citation omitted).1 Agents also may “seize”
property that a non-owner private party has voluntarily relinquished to them when
probable cause exists to believe that the property contains contraband. See
Jacobsen, 466 U.S. at 120–22 (noting that a “seizure was not unreasonable” when
law enforcement agents asserted “dominion and control over the [defendant’s]
package and its contents” that had been searched by a private party because “it is
well settled that it is constitutionally reasonable for law enforcement officials to
seize ‘effects’ that cannot support a justifiable expectation of privacy without a
warrant, based on probable cause to believe they contain contraband”).
1 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981. 15 USCA11 Case: 19-12623 Date Filed: 05/19/2021 Page: 16 of 28
Cooley and Cousins were both “private individual[s] not acting
as . . . agent[s] of the Government or with the participation or knowledge of any
governmental official,” making the Fourth Amendment “wholly inapplicable to a
search or seizure, even an unreasonable one, effected by” them. Id. at 113
(quotation marks omitted). When Cousins inadvertently discovered the child
pornography he was not acting as a government agent but was simply a private
individual trying to watch a TV show. And when Cooley and Cousins took the
computers to Agent Hamilton, they were not acting as government agents but as
private individuals. They turned the evidence over to the government on their own
initiative out of a desire not to be caught up in any of Castaneda’s criminal activity
themselves. The two of them and Agent Hamilton unequivocally testified to these
facts, and the magistrate judge unequivocally credited their testimony. We defer to
those credibility determinations. See Ramirez-Chilel, 289 F.3d at 749.
Because any actions taken by Cooley and Cousins were done as private
individuals and not as government agents, whether Castaneda consented to those
actions makes no difference. Castaneda’s reliance on “consent” is reliance on a
“Fourth Amendment principle[] governing searches and seizures [that] appl[ies]
only to ‘governmental action,’” not to the private action taken here. United States
v. DiTomasso, 932 F.3d 58, 67 (2d Cir. 2019) (quoting Jacobsen, 466 U.S. at 113).
And even if the FBI agents “seized” the computers when Cooley and Cousins
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voluntarily handed them over, Castaneda’s consent was not needed for that seizure.
See Jacobsen, 466 U.S. 120–22; see also Coolidge v. New Hampshire, 403 U.S.
443, 487–90 (1971). Nor was Castaneda’s consent needed for the FBI agents to
obtain a search warrant based on information provided by Cousins and Cooley.
See Steiger, 318 F.3d at 1041–46. Castaneda’s consent is irrelevant across the
board.
Once the FBI agents had the five computers from Castaneda’s
condominium, they obtained a search warrant to search them for child
pornography, and found it on two of them. Castaneda’s second argument in favor
of suppression is that the search warrant was not supported by probable cause. The
affidavit on which the warrant was based recounted, among other facts, Cousins’
detailed firsthand account of finding child pornography on Castaneda’s computer,
including a description of the video he saw. That was enough to provide probable
cause to believe that there was child pornography on that and the other computers
Castaneda had left in his condominium. Cf. Illinois v. Gates, 462 U.S. 213, 234
(1983) (“[E]ven if we entertain some doubt as to an informant's motives, his
explicit and detailed description of alleged wrongdoing, along with a statement that
the event was observed firsthand, entitles his tip to greater weight than might
otherwise be the case.”).
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The fact that electronic devices found on Castaneda when he was arrested
did not contain child pornography does nothing to undermine the existence of
probable cause. As the magistrate judge correctly pointed out: “Logically,
[Castaneda] might not want to have contraband on a computer while traveling
because travel often involves the presence of other people and thus, raises the risk
of discovery by others or even law enforcement.”
Because Cousins’ discovery of the child pornography was enough to
establish probable cause to search the computers, we need not address whether
Castaneda’s offense conduct would be enough by itself to provide probable cause
to believe there would be child pornography in some of the computers he had left
in the condo. The district court did not err in denying Castaneda’s motion to
suppress.
IV.
Castaneda chose to testify at trial. On direct examination he testified that he
was originally just role playing an online fantasy with “Kandi” and that, once he
came to believe that there was a real child in danger, his intent in traveling to
Atlanta was to rescue the child, not sexually abuse her. On cross-examination, the
government asked Castaneda about his possession of child pornography, and in
response he said that he was invoking the Fifth Amendment. After Castaneda did
that, the district court told the jury that he had no valid Fifth Amendment privilege
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under the circumstances and that because Castaneda chose to testify, he was
subject “to the same rules that apply to any other witness.” That meant, the court
explained, that if Castaneda “has failed to deny or explain acts of an incriminating
nature that the government’s evidence tends to establish against him, [the jury]
may consider that failure with all the other circumstances in assessing [his]
credibility.”
Castaneda contends that instruction was error because he did have a valid
Fifth Amendment privilege. It was not, and he did not. “It has long been held that
a defendant who takes the stand in his own behalf cannot then claim the privilege
against cross-examination on matters reasonably related to the subject matter of his
direct examination.” Jenkins v. Anderson, 447 U.S. 231, 236 n.3 (1980) (quotation
marks omitted); accord Kansas v. Cheever, 571 U.S. 87, 94 (2013). Castaneda
testified that he was not going to Atlanta with the intent to sexually abuse a child,
but to save her by going to the police there. The government argued exactly to the
contrary. Castaneda’s possession of child pornography on his home computers
was relevant to that disputed issue because it showed that he was sexually attracted
to children and liked to see them being sexually exploited and abused. See United
States v. Lebovitz, 401 F.3d 1263, 1271 (11th Cir. 2005) (noting “the well-
documented link between the possession of child pornography and the sexual
abuse of children”). The district court did not abuse its discretion in admitting the
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evidence that Castaneda possessed child pornography, in overruling his objection
on Fifth Amendment grounds, or in instructing the jury that it could consider his
refusal to answer questions about his possession of child pornography in assessing
his credibility.
V.
Castaneda contends that the district court abused its discretion by not
permitting one of his witnesses, Dr. James Herriot, to testify before the jury.
Castaneda put Dr. Herriot forward as an expert in “Computer Mediated
Communication (CMC) on sexual topics” who would testify that statements made
over the internet “cannot be reliability [sic] taken at face value” because people
sometimes create fictitious details on the internet. Dr. Herriot’s report stated that
he offered only “general context, cultural narrative, background, and expertise”
about online communications and that he had made “[n]o analysis or
recommendations regarding the specifics of this case.”
The district court excluded Dr. Herriot’s testimony because it had “not been
shown to be relevant to this case.” The court explained that: although his “report
indicate[d] that he reviewed material ‘related’ to this case, he goes on to say that he
has not made any findings or drawn any conclusions with respect to the particulars
of this case, nor has he conducted any analysis or made any recommendations
regarding the specifics of this case.” “[A]t most,” the court concluded, “Dr.
20 USCA11 Case: 19-12623 Date Filed: 05/19/2021 Page: 21 of 28
Herriot would only be able to provide general background information on CMC,
without any specific opinion as to whether the defendant in this case acted in
accordance with CMC expectations, and if so, what that means within the context
of the charges in the indictment, as well as any defenses thereto.” For that reason,
the court found that Dr. Herriot’s testimony was not relevant and would not “assist
jurors in deciding the issues in the case.”
We review only for an “abuse of discretion the district court’s decisions
regarding the admissibility of expert testimony” and we will reverse only if “the
ruling is manifestly erroneous.” United States v. Frazier, 387 F.3d 1244, 1258
(11th Cir. 2004) (en banc) (quotation marks omitted). “[I]t is by now axiomatic
that a district court enjoys ‘considerable leeway’ in making these determinations.”
Id. (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)).
Expert testimony must “help the trier of fact to understand the evidence or to
determine a fact in issue.” Fed. R. Evid. 702(a). “This condition goes primarily to
relevance.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591 (1993). The
question “is whether expert testimony proffered in the case is sufficiently tied to
the facts of the case that it will aid the jury in resolving a factual dispute.” Id.
(quotation marks omitted). The requirement that the testimony be helpful
“requires a valid scientific connection to the pertinent inquiry as a precondition to
admissibility.” Id. at 591–92.
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The district court acted within its discretion in excluding Dr. Herriot’s
testimony because that testimony was not specifically pegged to Castaneda’s
communications but only contained generalized background information that some
people sometimes mix fact with fiction on the internet. No juror needs expert help
understanding that concept. Everyone knows people sometimes lie and that the
internet does not filter out falsehoods.
A year and a half ago this Court had before it another case in which the
district court had excluded materially identical testimony from Dr. Herriot. See
United States v. Gillis, 938 F.3d 1181 (11th Cir. 2019). The defendant in that case,
similar to Castaneda, had engaged in online communications with an undercover
agent posing as the father of an 11-year-old daughter. Id. at 1187–88. That
defendant’s communications, like those of Castaneda’s, were aimed at having sex
with the young daughter. Id. He, like Castaneda, was convicted for, among other
things, attempting to entice a minor to engage in unlawful sexual activity, in
violation of 18 U.S.C. § 2422(b). Id. at 1189.
The defendant in the Gillis case, like Castaneda, had sought to introduce
expert opinion testimony of Dr. Herriot “about fantasy and role playing in online
sexual communications.” Id. at 1194. The district court in that case, like the
district court in this one, sustained the government’s objection under Daubert and
Rule 702. Id. at 1193–94; see Daubert, 509 U.S. at 591–93; Fed. R. Evid. 702.
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We noted, with approval, one of the district court’s findings in support of its ruling
was that: “[Dr. Herriot’s] primary conclusion—that not all communications on the
internet are truthful—was within the knowledge of laypersons.” Gillis, 938 F.3d at
1194. We agree and in this case have no trouble reaching the same conclusion that
we did in Gillis. The district court did not abuse its discretion.
VI.
Finally, Castaneda contends that his sentence of 35 years imprisonment is
substantively unreasonable and that he instead should have been sentenced to the
statutory mandatory minimum of 30 years. In sentencing Castaneda, the court
took “into account everything that has been presented” and concluded that the 35-
year sentence was justified “after considering all of the applicable sentencing
factors pursuant to 18 U.S.C. section 3553(a).”
“The burden is on [Castaneda] to show that his sentence is unreasonable in
light of the facts of this case and the [18 U.S.C.] § 3553(a) factors.” United States
v. Isaac, 987 F.3d 980, 994 (11th Cir. 2021). We review the reasonableness of the
sentence only for an abuse of discretion. See Gall v. United States, 552 U.S. 38,
51 (2007); United States v. Irey, 612 F.3d 1160, 1188–90 (11th Cir. 2010) (en
banc). “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
23 USCA11 Case: 19-12623 Date Filed: 05/19/2021 Page: 24 of 28
of judgment in considering the proper factors.” Irey, 612 F.3d at 1189 (quotation
marks omitted). “A district court’s sentence need not be the most appropriate one,
it need only be a reasonable one,” id. at 1191, and the abuse of discretion standard
of review “allows a range of choice for the district court,” including reasonable
choices that we must affirm “even though we would have gone the other way had it
been our call,” id. at 1189 (quotation marks omitted). The gist of it is that
“[s]ubstantively unreasonable sentences are rare.” United States v. Kirby, 938
F.3d 1254, 1259 (11th Cir. 2019) (quotation marks omitted).
The district court did not commit a clear error in judgment in weighing the
§ 3553(a) factors and sentencing Castaneda. To begin with, although we do not
automatically presume that a sentence within the guidelines range is reasonable,
we ordinarily expect it to be. United States v. Hunt, 526 F.3d 739, 746 (11th Cir.
2008). At 35 years, Castaneda’s sentence was within the guidelines range of 30
years to life. Another indication of a reasonable sentence is that it is below the
statutory maximum penalty of life imprisonment. See United States v. Gonzalez,
550 F.3d 1319, 1324 (11th Cir. 2008); see also United States v. Riley, ___ F.3d
___, No. 19-14013, 2021 WL 1653023, at *5 (11th Cir. Apr. 28, 2021) (“That an
upward variance sentence is well below the statutory maximum indicates that it is
reasonable.”) (quotation marks omitted).
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Castaneda argues that his sentence is unreasonable because no child was
actually hurt or endangered. He concedes that factor is not recognized in the
statute but argues it still “would have been reasonable for the court to” rely on it at
sentencing. That misstates the question for us, which is whether it was
unreasonable for the court not to impose a lesser sentence because of that reason.
It wasn’t. After all, Castaneda did everything he could to actually endanger and
hurt a child. And Castaneda’s argument fails to account for the impact his
possession of hundreds of images and videos of child pornography had on the
victims in those images and videos. See, e.g., United States v. Pugh, 515 F.3d
1179, 1194–98 & n.12 (11th Cir. 2008); see also 18 U.S.C. § 3553(a)(1)–(2).
Castaneda pleads that he will suffer enough without the sentence being five
years above the statutory minimum. He will, he says, because “[p]edophiles are
despised across the board,” which he illustrates with the observation that “the
average person” would likely say a reasonable sentence for Castaneda would be
“torture[], disembowel[ment] then hang[ing].” He stresses that even “other
prisoners despise pedophiles” and, he claims, routinely harass and kill them in
prison. He characterizes an imprisoned pedophile’s life behind bars as “truly a
living hell.” For all those reasons, he thinks his sentence is substantively
unreasonable.
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The attitude of society in general, or of prisoners in particular, toward child
sex predators is not an 18 U.S.C. § 3553(a) factor that a sentencing judge must
consider. The low esteem in which pedophiles are held inside and outside prison
walls results from their having sexually abused children. There is no requirement
that a sex predator be given dispensation in sentencing because of what he brings
on himself by choosing to prey on children.
Additionally, the nature and circumstances of Castaneda’s crime in this case
support the lengthy sentence that was imposed. See 18 U.S.C. § 3553(a)(1). It
wasn’t an impulsive spur-of-the-moment crime. Castaneda trolled the internet
looking for child victim opportunities. While in San Diego he found an ad posted
in a section of Craigslist that was designated for the Atlanta area. He meticulously
planned a trip across the country, some 2,100 miles, for the sole purpose of
sexually abusing a 9-year-old girl. His planning and preparation included
grooming the intended victim to gain her trust and instructing her “mother” how to
assist him in the effort. Not only that, but Castaneda also possessed hundreds of
images and videos of child pornography, which were not even included in the
charges against him.
His history and characteristics further support the reasonableness of the 35-
year sentence. See 18 U.S.C. § 3553(a)(1). There was evidence from Castaneda
himself that he had previously abused children. He told the undercover law
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enforcement agent posing as “Kandi” that he had abused children in the past,
including one as young as 4 years old. That four-year-old, he added, was his
friend’s daughter, and he described how he had groomed her and kept her from
telling others. In addition to those statements from Castaneda himself, at the
sentence hearing a law enforcement agent testified that Castaneda had messaged
with a 13-year-old girl on Skype and propositioned her to meet him in person,
telling her he “could make it worth her while” and that she could “mak[e] some
real money.” That agent also testified that Castaneda had offered yet another
young girl, a 14-year-old, $50 for a “cam show” in which he requested that she
would be “fully nude.” The government also submitted to the court exhibits
evidencing those communications.
There is another circumstance that entered into the district court’s sentence
decision. The court had initially thought that a sentence of the mandatory
minimum 30 years might be sufficient, but Castaneda’s demeanor and continued
excuses for his criminal behavior were troubling enough to change the court’s
mind. The court stated that it couldn’t help but be troubled by the position
Castaneda took throughout the trial and in a letter he wrote to the court before
sentencing claiming that he had not done anything criminal but instead was “just
role-playing.”
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And then there was his demeanor, which conveyed his attitude. The court
pointed out “the look that you’re giving me now, which you had on your face
throughout the government’s presentation, almost like you’re confused about what
everybody is saying about you here.” There is no wonder that Castaneda’s failure
to accept responsibility and his demeanor were “very puzzling and troubling” to
the court in light of the evidence presented at trial and the jury’s verdict. Cf. Isaac,
987 F.3d at 996 (holding that “[t]he court appropriately considered” that the
defendant may not have understood the severity of his crimes or been remorseful).
AFFIRMED.