United States v. Richard Hoyt Crawford, Jr.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 14, 2020
• Docket: 18-15060
• Status: Unpublished

Opinion

Case: 18-15060 Date Filed: 02/14/2020 Page: 1 of 10

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-15060 Non-Argument Calendar ________________________

D.C. Docket No. 6:18-cr-00043-RBD-DCI-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICHARD HOYT CRAWFORD, JR.,

Defendant-Appellant.

________________________

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

(February 14, 2020)

Before WILSON, ROSENBAUM, and HULL, Circuit Judges.

PER CURIAM: Case: 18-15060 Date Filed: 02/14/2020 Page: 2 of 10

Richard Crawford, Jr. appeals his conviction for attempting to persuade,

induce, or entice a minor to engage in sexual activity, in violation of 18 U.S.C.

§ 2422(b). Crawford argues that § 2422(b) is unconstitutional—both facially and

as applied—because it is void for vagueness under the Fifth Amendment; that the

district court abused its discretion in both excluding a defense expert witness report

and testimony and refusing to exclude evidence of items found in Crawford’s car;

that there was insufficient evidence to convict him under § 2422(b); and that the

district court erred by failing to instruct the jury that a substantial step had to be

necessary or required to complete an offense. For the following reasons, we affirm

on all issues.

I.

First, the constitutionality claim. We review the constitutionality of a statute

de novo. United States v. Panfil, 338 F.3d 1299, 1300 (11th Cir. 2003) (per

curiam). Under the prior-panel-precedent rule, a prior panel’s holding is binding

on all subsequent panels, unless and until it is overruled or abrogated by this court

sitting en banc or the United States Supreme Court. United States v. Archer, 531

F.3d 1347, 1352 (11th Cir. 2008).

“A statute is void for vagueness under the Fifth Amendment’s Due Process

Clause if it ‘fails to provide a person of ordinary intelligence fair notice of what is

prohibited, or is so standardless that it authorizes or encourages seriously

2 Case: 18-15060 Date Filed: 02/14/2020 Page: 3 of 10

discriminatory enforcement.’” United States v. Ruggiero, 791 F.3d 1281, 1290

(11th Cir. 2015).

We have held that § 2422(b) is not unconstitutionally vague under the Fifth

Amendment. See Panfil, 338 F.3d at 1301 (rejecting an argument that the statute

fails to provide fair notice of illegal conduct because the terms have plain, ordinary

meanings, and observing that the “scienter requirement discourages ‘unscrupulous

enforcement’”). Beyond that, we have also rejected a void-for-vagueness

challenge to § 2422(b) in adult-intermediary situations because we previously held

that § 2422(b)’s plain language applies to those situations. United States v.

Hornaday, 392 F.3d 1306, 1310 (11th Cir. 2004).

These prior cases preclude Crawford’s vagueness challenges. His facial

challenge fails because we have already held § 2422(b) valid in other cases. See

Ruggiero, 791 F.3d at 1285–86. Likewise, his as-applied challenge fails because

Crawford’s conduct falls squarely within the plain meaning of the statute’s

language. See Murrell, 368 F.3d at 1287 (concluding that defendant’s conduct of

negotiating with the purported father of a minor falls squarely within the definition

of “induce”). Contrary to Crawford’s insistence, the directness of his

communication does not matter. See id. Section 2422(b) is neither facially

unconstitutional nor unconstitutional as applied to Crawford.

II.

3 Case: 18-15060 Date Filed: 02/14/2020 Page: 4 of 10

Next, the evidentiary issues. We review evidentiary rulings for abuse of

discretion. United States v. Gunn, 369 F.3d 1229, 1236 (11th Cir. 2004) (per

curiam). An abuse of discretion occurs if the district court applies an incorrect

legal standard, follows improper procedures in making the determination, or makes

findings of fact that are clearly erroneous. United States v. Wilson, 788 F.3d 1298,

1314 (11th Cir. 2015).

Crawford contests two evidentiary rulings. First, Crawford moved in limine

to exclude reference to items that authorities found in his car at the time he arrived

for his sexual encounter with the minor. Those items included a sex toy, male

sexual performance enhancement pills, condoms, pornographic DVDs, a DVD

player, lubricant, and a receipt for a contraceptive pill. The district court denied

his motion. On appeal Crawford argues that the district court erred because that

evidence was irrelevant, prejudicial, and misleading to the jury. We disagree.

Unless shown otherwise, relevant evidence is admissible. Fed. R. Evid. 402.

Relevant evidence is that which “has any tendency to make a fact more or less

probable than it would be without the evidence” and the fact is consequential to the

action. Fed. R. Evid. 401.

The car items were relevant. For one, the agent/“father” had conditioned sex

with his “daughter” on Crawford’s agreement to wear a condom and prevent

pregnancy. Thus, the condoms and the receipt for an emergency contraceptive pill

4 Case: 18-15060 Date Filed: 02/14/2020 Page: 5 of 10

tended to show that Crawford intended to satisfy these conditions, gain the father’s

permission, and thereby cause the minor to engage in sexual activity with him.

Also, given the daughter’s supposed youth and likely inexperience, the sex toy,

lubricant, DVDs, and DVD player tended to show that Crawford’s intent,

throughout his interactions with the father, was to induce the minor to engage in

sexual activity with him. Further, all the items tended to show Crawford’s

substantial steps in his attempt to induce the minor to engage in sexual activity

with him. See Murrell, 368 F.3d at 1288 (including the items that the defendant

brought to the meeting site as evidence showing a substantial step).

Even so, a district “court may exclude relevant evidence if its probative

value is substantially outweighed by the danger of one or more of the following:

unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting

time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403 (emphasis

added). But we see no abuse of discretion in the district court’s refusal to exclude

the car items on any of these bases. And even if we did, we conclude that any

error was harmless given the substantial evidence presented at trial, including

Crawford’s electronic messages and his testimony about his intent, which the jury

was free to disbelieve. See United States v. Hubert, 138 F.3d 912, 914 (11th Cir.

1998) (per curiam).

5 Case: 18-15060 Date Filed: 02/14/2020 Page: 6 of 10

Second, Crawford argues that the district court improperly excluded his

expert’s report and testimony. The expert report and testimony would have shown

that Crawford had no sexual interest in minors, and Crawford offered that evidence

to prove that he did not intend to have sex with a minor.

The district court properly excluded that evidence. Federal Rule of

Evidence 704(b) prohibits an expert witness from opining on whether the

defendant had or lacked a requisite mental state constituting an element of the

crime charged, reserving such a decision for the trier of fact alone. This means “an

expert may not opine on the defendant’s intent.” United States v. Gillis, 938 F.3d

1181, 1194 (11th Cir. 2019) (per curiam). In Gillis, we concluded that the district

court did not abuse its discretion when it excluded an expert’s proffered opinion

that the defendant “was not sexually attracted to prepubescent girls [as] simply a

thinly veiled attempt by the defense to offer an expert opinion that [the defendant]

lacked the requisite intent for” his § 2422(b) charge. Id. at 1195. Here, Crawford

offers his expert’s report and testimony for nearly identical reasons as Gillis did.

See id. Beyond that, the district court properly excluded that evidence because the

dangers that it would confuse the issues and mislead the jury substantially

outweighed any arguable probative value. See Fed. R. Evid. 403. Therefore, the

district court did not abuse its discretion by excluding this evidence.

III.

6 Case: 18-15060 Date Filed: 02/14/2020 Page: 7 of 10

Third, Crawford’s sufficiency-of-the-evidence challenge. We review de

novo a verdict challenged for sufficiency of the evidence, resolving all reasonable

inferences in favor of the verdict, and must affirm if a reasonable jury could have

concluded that the defendant was guilty beyond a reasonable doubt. United States

v. Lee, 603 F.3d 904, 912 (11th Cir. 2010).

It is illegal to knowingly attempt to persuade, induce, entice, or coerce a

minor to engage in prostitution or any sexual activity for which one can be

criminally charged, through a means of interstate commerce. 18 U.S.C. § 2422(b).

To “induce” means “to stimulate the occurrence of; cause.” Murrell, 368 F.3d at

1287 (alteration accepted) (citing the dictionary definition). Where a statute

defines multiple ways in which an offense can be committed, but the government

alleges the ways in the conjunctive, the government need only prove one of the

conjunctive acts for a conviction. United States v. Felts, 579 F.3d 1341, 1344

(11th Cir. 2009) (per curiam).

To support Crawford’s conviction for attempt under § 2422(b), the

government must have proved that, using a means of interstate commerce, he

(1) “acted with the specific intent to persuade, induce, entice, or coerce a minor to

engage in unlawful sex”; and (2) “took a substantial step toward his intended goal

of inducing a [minor] to engage in sexual activity with him.” Murrell, 368 F.3d at

1287–88. To conclude that Crawford took a substantial step, we must determine

7 Case: 18-15060 Date Filed: 02/14/2020 Page: 8 of 10

“that [his] objective acts mark his conduct as criminal such that his acts as a whole

strongly corroborate the required culpability.” See id. at 1288. A defendant can

violate § 2422(b) even if he only communicates with an adult intermediary and the

minor is fictitious. Id. at 1286–87; Lee, 603 F.3d at 912–13.

If a defendant testifies in his defense, he risks the jury disbelieving him,

concluding the opposite of his testimony is true, and considering his statements as

substantive evidence of his guilt. United States v. Brown, 53 F.3d 312,

314 (11th Cir. 1995). If there is some corroborative evidence of guilt for the

charged offense, and the defendant testifies on his own behalf, his testimony

denying guilt may, by itself, establish the elements of the offense. Id. at 314–15.

“This rule applies with special force where the elements to be proved for a

conviction include highly subjective elements: for example, the defendant’s intent

or knowledge.” Id. at 315.

Ample evidence supports Crawford’s conviction. Traveling under an

inducement theory, the government showed that Crawford intended to cause the

fictitious daughter to engage in unlawful sex with him via messages between the

agent/father and Crawford setting the terms of the meeting, as well as the car

items. By negotiating with the purported father of a minor, Crawford attempted to

cause the minor to engage in sexual activity with him. See Murrell, 368 F.3d at

1287. Moreover, the evidence shows that Crawford repeatedly reached out to the

8 Case: 18-15060 Date Filed: 02/14/2020 Page: 9 of 10

agent/father and pressed on with the plan when the agent/father gave him

opportunities to stop communications or back out. His conduct fits squarely within

the definition of “induce.” See id. Further, Crawford denied the requisite intent

when he testified in his own defense, and the jury could have disbelieved him and

considered his denial as evidence of his guilt. See Brown, 53 F.3d at 314–15.

Therefore, the government produced sufficient evidence of the intent element.

As for a substantial step, Crawford’s objective acts strongly corroborated his

culpability and provide clear evidence that his conduct was criminal. See Murrell,

368 F.3d at 1288. Crawford made incriminating statements to the agent/father,

traveled to the agreed meeting location, and carried the car items there. See id.

His actions, taken as a whole, demonstrate unequivocally that he intended to

induce the fictitious minor into engaging in unlawful sex with him and that his

conduct was therefore criminal. See id.

To the extent Crawford relies on Lee to undermine the sufficiency of the

evidence against him, his reliance is misplaced because, in Lee, the discussion of

assent related only to a persuasion theory. See 603 F.3d at 914. So focus on assent

does nothing for him when we consider his conviction under an inducement theory.

See id.

9 Case: 18-15060 Date Filed: 02/14/2020 Page: 10 of 10

Therefore, the evidence sufficed to show the elements of Crawford’s attempt

conviction. A reasonable jury could have concluded that Crawford was guilty

beyond a reasonable doubt. See id. at 912.

IV.

Last is Crawford’s issue with the substantial-step jury instruction. Crawford

insists that the district court erred because it failed to instruct the jury that a

substantial step must be a required or necessary action.

But invited error precludes review. United States v. Silvestri, 409 F.3d 1311,

1327 (11th Cir. 2005). Here, Crawford invited any claimed error because his

proposed jury instruction did not define a substantial step as necessary or required.

See id. So we will say no more on this issue than this: even if we reviewed on the

merits, we would affirm because no error occurred; the instruction complied with

current law.

AFFIRMED.