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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-11633 ________________________
D.C. Docket No. 3:15-cr-00067-BJD-JRK-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RUSSEL LEE ORR,
Defendant - Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(July 1, 2020)
Before JORDAN, TJOFLAT, and TRAXLER,∗ Circuit Judges.
∗The Honorable William B. Traxler, Circuit Judge for the United States Court of Appeals for the Fourth Circuit, sitting by designation. Case: 18-11633 Date Filed: 07/01/2020 Page: 2 of 26
PER CURIAM:
Russel Lee Orr appeals his convictions for attempted enticement of a child to
engage in sexual activity, attempted production of child pornography, and multiple
counts of advertising to receive child pornography. Mr. Orr argues that the district
court committed numerous errors that warrant reversal, including its refusal to give
a requested jury instruction on the defense’s theory of the case. We disagree, and
therefore affirm.
I
A
On March 10, 2015, Mr. Orr responded by email to an advertisement in the
Orlando area personal section of Craigslist. The advertisement, titled “Special
Needs Need Special Attention,” said the following: “Looking for some help with a
special needs situation, must be discreet, safe, and open minded.” Gov’t Supp.
App’x Vol. III at 60.
Unbeknownst to Mr. Orr, the advertisement had been posted by an undercover
law enforcement officer, Sgt. Stephen Gazdick of the St. Johns County Sheriff’s
Office in St. Augustine, Florida. Mr. Orr asked Sgt. Gazdick about the “needs
situation” and Sgt. Gazdick, posing as an adult male named “George Michaels,”
explained that he had custody of his 14-year-old deaf niece, and that she had been
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asking for help making a “special friend that will teach her things that [he] cannot.”
Id. at 62.
As the email exchange continued into the next day, Mr. Orr asked about the
things “George” was willing to let his niece do and confirmed with “George” that
the niece wanted to be taught about “getting oral” and “full sex.” Id. at 64–65. Mr.
Orr asked whether the niece was “really up for those things[,]” and whether she
understood “the general [d]ynamics of losing her virginity[.]” Id. at 65–66.
Eventually, at Mr. Orr’s request, “George” sent a photograph of his niece that
showed him sitting next to what appeared to be a prepubescent female but was in
reality an adult law enforcement officer whose appearance had been digitally altered
to make her appear younger and smaller. Mr. Orr wanted more photographs, and
asked for “a selfie nude pic with [the niece’s] face in it” to “help her to see if she
really want to go through [with] this” and also to “show this isn’t a police sting
operation.” Id. at 67. Mr. Orr wrote that the photos should include “face . . . boobs
and puss[,]” again, to help ensure that their exchange was not “some sort of sting”
since “[p]olice don’t transmit photos of girls naked[.]” Id. at 69. When asked
whether the girl should be in specific poses, Mr. Orr responded that he wanted a
“back shot of ass and pussy lips,” “[o]ne sitting with legs spread[,] [a] [c]lose up of
pussy, [a]nd any others u think are sexy[.]” Id.
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“George” responded that his niece was already in bed for the night but gave
Mr. Orr a cell phone number to text her directly. Mr. Orr continued to exchange
emails with “George” and, the day after he responded to the Craigslist post, also
started texting with the niece, “Emily Shannon,” who was also being played by Sgt.
Gazdick. On that first day Mr. Orr and “Emily” began texting, and after mentioning
the photographs he had requested from her uncle, he explained that he wanted to
make sure this was not a police sting operation and that he did not want the police
to come around because of their age difference and the fact that “Emily” was under
18. “Emily” said “im not 18, im 14” and Mr. Orr said “George” had told him of her
age. Gov’t Supp. App’x Vol. IV at 46.
Mr. Orr continued to email and text with “George” and “Emily” for the next
two months. He kept asking for pictures of “Emily,” repeatedly referencing the nude
pictures he had requested from “George” or asking for new pictures, including
pictures of her in her bra and underwear and pictures of her vagina, breasts, and
naked body. He also frequently described sexual acts that he wanted to teach her
and do with her. Although “Emily” and Mr. Orr frequently discussed meeting in
person or making plans to do so, Mr. Orr never traveled to meet her.
On May 21, 2015, law enforcement arrested Mr. Orr at his apartment based
on an indictment charging him with child enticement, production of child
pornography, and multiple counts of publishing a notice or advertisement seeking
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child pornography. Two officers—Sgt. Gazdick and FBI Special Agent Abbigail
Beccaccio—met with Mr. Orr in a police car in his building’s parking lot
immediately after the arrest. Sgt. Gazdick gave Mr. Orr his warnings under Miranda
v. Arizona, 384 U.S. 444 (1966), and Mr. Orr signed a form indicating that he had
read his statement of rights, understood what his rights were, and was willing to
answer questions without a lawyer present.
Mr. Orr’s interview was recorded and lasted approximately two hours. It
began with basic biographical questions about Mr. Orr, including his education level
and previous jobs. Sgt. Gazdick eventually told Mr. Orr that officers had received a
complaint about communications to and from a Gmail email account under Mr. Orr’s
name involving an underage person. Mr. Orr immediately said that he knew that
meeting or trying to meet underage girls was illegal but that engaging in role-playing
or fantasy was different. Sgt. Gazdick showed Mr. Orr the Craigslist advertisement
and the emails and text messages he had exchanged with “George” and “Emily,” and
the officers asked him several questions about the conversations.
Mr. Orr denied that he ever intended to travel to meet “Emily,” and claimed
throughout the interview that all he was doing was role-playing. At times the officers
agreed with things Mr. Orr said, such as, for example, when Sgt. Gazdick agreed
that Mr. Orr had not gone to meet an underage child. They did not reveal to Mr. Orr
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that “George” and “Emily” were fictitious identities and that Sgt. Gazdick had been
pretending to be both “Emily” and her uncle the entire time.
At the same time Mr. Orr was arrested, law enforcement officers executed a
search warrant at his apartment. They found his cellphone and, after analyzing its
content, determined that the cellphone’s user had searched the internet for the terms
“underage porn” and “early teenage sex” on May 18, 2015. The officers did not find
any child pornography on the phone, in Mr. Orr’s apartment, or on his computer.
B
A grand jury returned a superseding indictment charging Mr. Orr with one
count of knowingly and willfully attempting to induce and entice a minor to engage
in sexual activity for which a person can be charged with the production of child
pornography, 18 U.S.C. §§ 2251(a) and 2422(b) (Count 1); one count of knowingly
and willfully attempting to induce and entice a minor to engage in any sexually
explicit conduct for the purpose of producing visual depictions of the conduct, 18
U.S.C. § 2251(a), (e) (Count 2); and eight counts of knowingly making a notice and
advertisement seeking and offering to receive visual depictions involving the use of
a minor engaging in sexually explicit conduct, 18 U.S.C. §§ 2251(d)(1)(A), (2)(B)
and 2251(e) (Counts 3 through 10).
After Mr. Orr pleaded not guilty, his case proceeded to trial. He filed several
pre-trial motions, including a motion to suppress statements and a motion to suppress
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physical evidence. He sought to exclude incriminating statements made during his
interview with Sgt. Gazdick and Special Agent Beccaccio on the ground that they
were involuntary because the officers procured them by withholding information
about the charges and by acting like his friend to gain his trust and confidence. He
also sought to exclude the items seized in the search of his apartment, arguing that
the warrant was not specific to the items to be seized and was not supported by
probable cause. The district court denied both motions.
At trial, the government called several witnesses, including Sgt. Gazdick and
Special Agent Beccaccio. Sgt. Gazdick testified that he placed the Craigslist
advertisement and communicated with Mr. Orr under the invented personas of
“George Michaels” and “Emily Shannon.” He and Special Agent Beccaccio read
portions of the text messages between Mr. Orr and “Emily,” with Sgt. Gazdick acting
as Mr. Orr and Special Agent Beccaccio acting as “Emily.” At the close of the
government’s case, Mr. Orr’s counsel orally moved for a judgment of acquittal under
Federal Rule of Criminal Procedure 29(a), which was denied by the court. Mr. Orr
did not testify or present any evidence.
At the charge conference, Mr. Orr objected to the district court’s refusal to
provide his requested jury instruction on the defense theory that he had been role-
playing or engaging in fantasy when he was communicating with “George” and
“Emily.” The district court ultimately decided to provide a pattern instruction as to
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intent, concluding that it would give the jury sufficient direction on the matter of
specific intent.
The jury returned a verdict of guilty as to all the charges in the superseding
indictment. The district court denied Mr. Orr’s written motion for a judgment of
acquittal or a new trial.
Before sentencing, the probation office prepared a report which set Mr. Orr’s
base offense level at 32 and provided for a total offense level of 36 based on two
two-level enhancements. One of the enhancements pertained to offenses involving
a minor between 12 and 15 years of age. See U.S.S.G. § 2G2.1(b)(1)(B). The other
enhancement related to offenses involving the use of a computer. See U.S.S.G.
§ 2G2.2(b)(6). The report established the advisory guideline range as 188 months
to 235 months of imprisonment. Mr. Orr filed objections to both enhancements,
arguing that they constituted impermissible double counting because elements of the
crimes were already fully accounted for by application of other provisions of the
Sentencing Guidelines.
At the sentencing hearing, the district court overruled the objections and
sentenced Mr. Orr on the ten counts of his indictment to a total term of 180 months
in custody, to be served concurrently, followed by 120 months of supervised release.
This constituted an eight-month downward variance from the low end of the
advisory guidelines range to the mandatory minimum sentence.
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II
Mr. Orr appeals on multiple grounds. We address each of them below.
Mr. Orr first argues that the district court should have suppressed his
statements because they were obtained in violation of the Fifth Amendment. We
review a district court’s findings of fact in resolving a motion to suppress for clear
error. See United States v. Spoerke, 568 F.3d 1236, 1244 (11th Cir. 2009). We
review the district court’s application of the law to those facts de novo. See id. We
construe the facts in the light most favorable to the party that prevailed on the
motion, here the government. See id.
A suspect may waive his Fifth Amendment privilege against self-
incrimination if the waiver is voluntary, knowing, and intelligent. See Colorado v.
Spring, 479 U.S. 564, 572 (1987) (citing Miranda, 384 U.S. at 436). The inquiry
into the voluntary, knowing, and intelligent nature of a waiver has “two distinct
dimensions.” Id. at 573 (citation and internal quotation marks omitted). First, to be
voluntary, the waiver must have been “the product of a free and deliberate choice
rather than intimidation, coercion, or deception.” Id. (citation omitted). Second, to
be knowing and intelligent, a waiver “must have been made with a full awareness of
both the nature of the right being abandoned and the consequences of the decision
to abandon it.” Id. (citation omitted). A court must consider the totality of the
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circumstances surrounding the interrogation to determine whether a suspect’s
decision was voluntary, knowing, and intelligent. See id.
Examining the relevant circumstances here, we conclude that Mr. Orr’s
statements were made voluntarily. There are none of the usual markers of police
misconduct or coercion. The officers did not make any direct or implied promises
to induce cooperation, much less overtly threaten or harm Mr. Orr to extract a
confession. See United States v. Lall, 607 F.3d 1277, 1285–86 (11th Cir. 2020)
(discussing how promises of non-prosecution can distort the suspect’s choice and
make it impossible for him to make a rational decision about whether to confess).
The officers also did not deceive Mr. Orr about the law.
Even if we accept Mr. Orr’s argument that the officers lied to him about the
facts, misrepresentations of fact are generally not enough to render a confession
involuntary. See id. at 1285–86 (distinguishing misrepresentations of law and
explaining that misrepresentations of fact are generally permitted). The officers did
not tell Mr. Orr that they had been investigating him for several weeks and that they
had significant cellphone text and email evidence against him, but we have never
held that Miranda or the Fifth Amendment requires officers to disclose to a suspect
all the details of an investigation or all the evidence they have assembled against
him.
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The totality of the circumstances persuades us that Mr. Orr’s statements were
also knowingly and intelligently made. At the time of the arrest, Mr. Orr was a 39-
year-old adult of at least normal intelligence, and there is no indication that he did
not understand his Miranda rights or the waiver form that he signed. And nothing
the officers did after his waiver compromised his ability to understand the nature of
his rights or the consequences of abandoning them.
Mr. Orr nevertheless argues that because he was not told why he was being
arrested, and was not informed that he was being questioned about a criminal
offense, he could not knowingly and intelligently waive his right against self-
incrimination. The Constitution, however, “does not require that a criminal suspect
know and understand every possible consequence of a waiver of the Fifth
Amendment privilege.” Spring, 479 U.S. at 574 (citing Moran v. Burbine, 475 U.S.
412, 422 (1986)). The waiver form that Mr. Orr signed clearly stated that he had
read his statement of rights, understood his rights, and was willing to answer
questions without a lawyer present—and that anything he said could be used against
him in court. The lack of qualification in that “broad and explicit warning. . . .
conveys to a suspect the nature of his constitutional privilege and the consequences
of abandoning it.” Id. at 577.
Mr. Orr tries to distinguish Spring by suggesting that the confession in that
case was valid because the defendant had been made aware that law enforcement
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was interrogating him about at least one criminal act, even though they did not advise
him that they might be questioning him about a separate crime. But this is too narrow
a reading of Spring. Central to the holding in Spring was the lack of any coercive
police conduct and the defendant’s understanding of his right to remain silent—not
the fact that he was aware that he had been arrested for at least one criminal offense.
See id. at 573–75. The arrest, handcuffing, placement in a law enforcement vehicle,
and questioning by local and federal officers in that vehicle should have cued Mr.
Orr that, in the words of the district court, this was “something less than a courtesy
call” and was related to suspected criminal conduct. See D.E. 66 at 13.
Mr. Orr also contends he was tricked by the officers both because they did not
reveal the charges against him and because they acted in a friendly manner. We start
out by noting that the Supreme Court has sanctioned a certain degree of “strategic
deception” in police interrogations that otherwise do not run afoul of Miranda. See
Illinois v. Perkins, 496 U.S. 292, 297 (1990). In Spring, for example, the Court
explicitly rejected the contention that mere silence by an officer as to the subject
matter of an interrogation even qualified as trickery. See 479 U.S. at 576. The
friendly demeanor of law enforcement officers during an interrogation also does not
create Fifth Amendment concerns. See Perkins, 496 U.S. at 297 (“Ploys to mislead
a suspect or lull him into a false sense of security that do not rise to the level of
compulsion or coercion to speak are not within Miranda’s concerns.”) (citations
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omitted). Indeed, the Court has sanctioned similar strategies that involved more
affirmative misdirection on the part of law enforcement than what was present here.
See id. at 297–298 (upholding confession to an undercover agent posing as a
cellmate). See also Moran, 475 U.S at 421–22 (police failure to inform suspect of
attorney’s efforts to reach him did not invalidate waiver of Miranda rights).
Given the precedent discussed above and the circumstances of the case, we
hold that Mr. Orr voluntarily, knowingly, and intelligently waived his rights against
self-incrimination. The district court correctly denied his motion to suppress his
statements.
Mr. Orr filed a separate motion to suppress evidence found in his apartment.
He argues on appeal that the search warrant lacked probable cause because only
“George Michaels,” the would-be victim’s uncle and not “Emily,” the victim herself,
told Mr. Orr that she was 14 years old and because the affidavit supporting the
warrant did not append images of sexually explicit conduct or provide sufficient
factual details describing any such images.
We apply the same de novo standard to review a motion to suppress evidence
as we do for a motion to suppress statements. See United States v. Anderton, 136
F.3d 747, 749 (11th Cir. 1998). Affidavits supporting arrest warrants are
presumptively valid. See United States v. Jenkins, 901 F.2d 1075, 1080 (11th Cir.
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1990) (citing Franks v. Delaware, 438 U.S. 154, 171 (1978)). And we afford
“[g]reat deference” to a lower court’s probable cause determination. See United
States v. Brundidge, 170 F.3d 1350, 1352 (11th Cir. 1999) (citation omitted).
The district court denied Mr. Orr’s motion, concluding that the warrant
precisely detailed the place and items to be searched and seized, and that all the items
described bore a substantial relationship to the commission of the child exploitation
felonies for which there was probable cause. These findings are not erroneous.
“Probable cause to support a search warrant exists when the totality of the
circumstances allow a conclusion that there is a fair probability of finding
contraband or evidence at a particular location.” Id. (citing United States v.
Gonzalez, 940 F.2d 1413, 1419 (11th Cir. 1991)). If the apparent facts from the
affidavit would lead a “reasonably discreet and prudent [person]” to believe that the
charged offense was committed, there is probable cause justifying the issuance of
the warrant. Jenkins, 901 F.2d at 1080 (citation omitted). Considering the totality
of the circumstances, and affording deference to the district court, we agree with its
determination that the warrant was supported by probable cause.
Special Agent Beccaccio’s affidavit, which provided the factual basis for the
warrant, specified that the investigation concerned alleged violations of 18 U.S.C
§§ 2251, 2252, and 2252A, which prohibit the sexual exploitation of minors. It set
out her training and experience investigating child pornography, the way in which
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computer technology has revolutionized the manufacture and distribution of child
pornography, and the tendency of child pornographers to store images of child
pornography in their computers and on other forms of digital media (which were
included in the list of items to be seized and searched that was attached to the warrant
application). The affidavit asserted that, based on her experience and training,
individuals who traffic and trade in child pornography also frequently collect child
pornography, are sexually attracted to children, and use the internet to communicate
with potential child victims.
Special Agent Beccaccio’s affidavit provided the background facts of the
investigation, including Mr. Orr’s response to Sgt. Gazdick’s Craigslist
advertisement and sexually explicit excerpts from the messages and requests for
photographs that were exchanged between Mr. Orr and Sgt. Gazdick acting as
“Emily” and “George.” The affidavit relayed how Sgt. Gazdick, acting as the
victim’s uncle, informed Mr. Orr that his niece was 14 years old and how, acting as
“Emily,” he told Mr. Orr “im not 18, im 14” when Mr. Orr brought up the “age
difference of un [sic] under 18…”
The affidavit provided a sufficient basis to conclude that there was a fair
probability of finding contraband or evidence at Mr. Orr’s apartment. It
demonstrated that Mr. Orr knew “Emily” was a minor and that he was seeking and
requesting sexually explicit visual depictions of a minor. The details regarding Mr.
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Orr’s behavior throughout the investigation, and information regarding the general
tendencies of child pornographers based on past investigations, established a nexus
between the criminal conduct and Mr. Orr’s apartment, indicating that law
enforcement would find evidence there related to advertising for, receiving,
distributing, and possessing child pornography. Cf. Jenkins, 901 F.2d at 1080–81
(“[E]vidence that a defendant has stolen material which one normally would expect
him to hide at his residence will support a search of his residence.”) (citation
omitted).
Although the government did not attach photographs or describe specific
pornographic images officers expected to find at the apartment, there is no
requirement that it do so given the other details provided in the affidavit. Probable
cause for child pornography offenses does not depend on law enforcement having
proof that child pornography is in the defendant’s possession. See generally United
States v. Williams, 444 F.3d 1286, 1304 n.87 (11th Cir. 2006) (citing cases and
explaining that several courts have held that affidavits indicating a defendant has
joined internet groups where members exchange child pornography provide
probable cause to search his home although there was no evidence of any downloads
of illegal child pornography), overturned on other grounds by 128 S. Ct. 1830
(2008).
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Affording deference to the district court’s probable cause determination and
considering the totality of the circumstances, we conclude that there was probable
cause to issue the arrest warrant. The district court correctly denied Mr. Orr’s motion
to suppress the physical evidence.
C
Mr. Orr next maintains that there was insufficient evidence to support his
convictions and that the district court erred by denying his motion for judgment of
acquittal and motion for judgment notwithstanding the verdict. We disagree.
We review challenges to the sufficiency of the evidence, motions for judgment
of acquittal, and motions for judgment notwithstanding the verdict de novo. See
United States v. Hernandez, 433 F.3d 1328, 1332 (11th Cir. 2005). A district court
considering motions for judgment of acquittal and judgment notwithstanding the
verdict should apply the same standard used in reviewing a challenge based on the
sufficiency of the evidence. See United States v. Ward, 197 F.3d 1076, 1079 (11th
Cir. 1999). Challenges to the sufficiency of the evidence require a district court to
determine whether “a reasonable juror could conclude that the evidence establishes
guilt beyond a reasonable doubt,” viewing the evidence “in the light most favorable
to the verdict.” United States v. Takhalov, 838 F.3d 1168, 1169 (11th Cir. 2016)
(citations and internal quotation marks omitted). See also United States v. Taylor,
972 F.2d 1247, 1250 (11th Cir. 1992); United States v. Descent, 292 F.3d 703, 706
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(11th Cir. 2002). “It is not necessary for the evidence to exclude every reasonable
hypothesis of innocence or be wholly inconsistent with every conclusion except that
of guilt,” because “[a] jury is free to choose among reasonable constructions of the
evidence.” Ward, 197 F.3d at 1079 (citations and internal quotation marks omitted).
Counts One and Two charged Mr. Orr with attempts to entice a child to engage
in sexual activity and to produce child pornography in violation of 18 U.S.C.
§§ 2422(b) and 2251(a). To establish a violation of § 2422(b), the government must
prove that the defendant “intended to cause assent on the part of a minor” to engage
in sexual activity, and that he took a substantial step toward causing that assent. It
does not have to prove that the defendant acted with the specific intent to engage in
an actual sexual activity, nor that he took a substantial step toward sexual contact.
See United States v. Lee, 603 F.3d 904, 914 (11th Cir. 2010) (internal quotation
marks and citation omitted). To establish a violation of § 2251(a), the government
must show that a defendant intentionally attempted to use minors to produce child
pornography. See id. at 918. A defendant takes a substantial step “when his
objective acts mark his conduct as criminal and, as a whole, strongly corroborate the
required culpability.” Id. at 914 (internal quotation marks and citation omitted). For
both offenses, a minor can be a law enforcement officer acting in an undercover
capacity or a fictitious minor. See id. at 913 (stating that 18 U.S.C. §§ 2422(b) and
2251(a), (e) do not require an actual minor victim and that attempts to exploit
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fictitious minors can support a conviction). See also United States v. Orrega, 363
F.3d 1093, 1097–98 (11th Cir. 2004) (reviewing the district court’s grant of a
downward departure at sentencing, and stating that a defendant who had
conversations asking to engage in sexual acts with an undercover agent posing as a
thirteen-year-old girl had attempted to entice a minor to engage in a sexual act under
18 U.S.C. § 2422(b)).
Although Mr. Orr did not travel to meet with “Emily,” he emailed and texted
extensively with an undercover officer posing as both a would-be minor victim and
her uncle. He repeatedly asked for sexually explicit photos of the minor, discussed
sex with the purported minor, and described the sexual acts he wanted to perform
with her and on her. In Lee, we upheld the defendant’s convictions under §§ 2422(b)
and 2251(a) based on similar conduct. See 603 F.3d at 914–918 (finding sufficient
evidence to support conviction under §§ 2422(b) and 2251(a) even though the
defendant did not travel to or meet with the minors, based on, among other conduct,
initiating contact with an adult whom the defendant believed to be interested in
providing sexual access to the minors, expressing concerns about falling into a police
trap, requesting sexually explicit photographs of the minors, expressing his
seriousness about meeting the minors, and discussing travel details to meet the
minors). Thus, viewing the evidence in the light most favorable to the government,
we conclude that there was enough evidence for a reasonable jury to find Mr. Orr
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guilty beyond a reasonable doubt of the offenses charged under §§ 2422(b) and
2251(a).
The remaining eight counts—Counts Three to Ten—charged Mr. Orr with
making a notice or advertisement seeking or offering to receive any visual depiction
of a minor engaging in sexually explicit conduct in violation of 18 U.S.C.
§§ 2251(d)(1)(A), (2)(B) and 2251(e). Mr. Orr has arguably waived any challenge
to the § 2251(d)(1)(A), (2)(B) convictions by failing to discuss them in his briefing.
See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014). But
even if we overlook the briefing deficiency, we conclude that there was sufficient
evidence. A reasonable jury could find beyond a reasonable doubt that he knowingly
made notices and advertisements seeking and offering to receive images of child
pornography based on his multiple and graphically detailed requests for specific
images of child pornography.
We may not overturn a verdict if there exists “any reasonable construction of
the evidence that would have allowed the jury to find the defendant guilty beyond a
reasonable doubt.” United States v. Wilson, 788 F.3d 1298, 1308 (11th Cir. 2015)
(citation omitted). Because we have found that permissible interpretations of the
evidence support all of Mr. Orr’s convictions, we affirm the district court’s denials
of the motion for acquittal and motion for judgment notwithstanding the verdict.
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D
Mr. Orr argues that the district court committed reversible errors in allowing
inadmissible evidence that had a prejudicial impact on the jury, and contends that
these mistakes resulted in cumulative error. We review a district court’s decision to
admit evidence for abuse of discretion. See United States v. Bradberry, 466 F.3d
1249, 1253 (11th Cir. 2006). The district court generally has “wide discretion” in
making evidentiary judgment calls. See United States v. Stephens, 365 F.3d 967,
973 (11th Cir. 2004) (citation omitted). And “[o]nly if the decision to admit
evidence. . . is unsupportable when the evidence is viewed in the light most
supportive of the decision will we say that the decision constitutes an abuse of
discretion.” Bradberry, 466 F.3d at 1253 (internal quotation marks and citation
omitted). Moreover, “[a]n erroneous evidentiary ruling will result in reversal only
if the resulting error was not harmless.” United States v. Frediani, 790 F.3d 1196,
1200 (11th Cir. 2015) (internal quotation marks and citation omitted).
Mr. Orr makes six discernable claims of error with respect to improper
admission of evidence. Specifically, he argues it was error for the district court to
(1) admit Sgt. Gazdick’s testimony that some investigations involved individuals
who traveled to meet victims; (2) admit Sgt. Gazdick’s testimony of emails received
from Mr. Orr; (3) admit as evidence the copy of the Craigslist advertisement that
Sgt. Gazdick had posted; (4) admit as evidence six exhibits containing emails
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between Mr. Orr and Sgt. Gazdick posing as “George” and “Emily”; (5) allow Sgt.
Gazdick and Special Agent Beccaccio to read out text messages between Mr. Orr
and “Emily,” playing the parts of Mr. Orr and “Emily” respectively; and (6) allow
Sgt. Gazdick to provide a legal conclusion by testifying that police are not allowed
to send child pornography but are allowed to send a doctored image, pretend to be a
child, or use a fake name as part of an investigation.
For each of these claims, Mr. Orr relies on conclusory assertions regarding
the prejudicial nature of the testimony or evidence. Aside from identifying the
applicable legal standard for some of the challenges or describing the basis of the
objection at trial, he does not cite any legal support for his arguments. Mr. Orr’s
first two claims of error, for example, assert that the district court admitted irrelevant
testimony by Sgt. Gazdick related to past investigations and suspects’ travel. But
apart from citing legal authority to define what constitutes relevant evidence and
summarily stating that Sgt. Gazdick’s testimony was irrelevant and prejudicial, Mr.
Orr does not explain to us in his briefs why this information is actually irrelevant or
how he might have been harmed by its admission. This approach is emblematic of
his treatment of the remaining claims of error. In light of this failure, we reject these
challenges. See Sapuppo, 739 F.3d at 681 (“[A]n appellant abandons a claim when
he either makes only passing references to it or raises it in a perfunctory manner
without supporting arguments and authority.”) (citation omitted).
22 Case: 18-11633 Date Filed: 07/01/2020 Page: 23 of 26
Without contrary explanation from Mr. Orr or anything beyond a conclusory
assertion that these alleged errors had a prejudicial effect on him, we also conclude
that any errors were harmless. Furthermore, because we do not hold that admission
of any of this evidence was erroneous, there can be no cumulative error. See United
States v. Gonzalez, 834 F.3d 1206, 1227 (11th Cir. 2016) (noting that because there
was no error, there could be no cumulative error) (citations omitted).
E
Mr. Orr next challenges the district court’s failure to provide a requested
defense theory instruction. A defendant is entitled to a theory of the defense
instruction for which there is any evidentiary foundation, “even though the evidence
may be weak, insufficient, inconsistent, or of doubtful credibility.” United States v.
Opdahl, 930 F.2d 1530, 1535 (11th Cir. 1991) (quoting United States v. Lively, 803
F.2d 1124, 1126 (11th Cir. 1986)).
A district court’s refusal to deliver a requested instruction to the jury is
reviewed for abuse of discretion. See United States v. Woodard, 531 F.3d 1352,
1364 (11th Cir. 2008). The district court commits reversible error if “(1) the
requested instruction was a correct statement of the law, (2) its subject matter was
not substantially covered by the charge actually given, and (3) its subject matter dealt
with an issue in the trial court that was so important that the failure to give it seriously
23 Case: 18-11633 Date Filed: 07/01/2020 Page: 24 of 26
impaired the defendant’s ability to defend himself.” Id. (quoting United States v.
Paradies, 98 F.3d 1266, 1287 (11th Cir. 1996)).
Mr. Orr’s requested instruction read as follows:
A major component of the entertainment on the Internet is the rapid repartee, in addition to having imaginative fun. When engaging in Internet role-play, people love to experiment with their personas. Typically, people weave a bit of truth about themselves with a great deal of imagination and/or exaggeration. Sexually explicit conversations tend to drive the chatting relationship, and are fueled by the anonymity of the created personas. Often, chatters become curious about who is ‘behind the screen.’ There are many methods chatters use to ‘de-mask’ the other participant: such as asking for a photograph, attempting a phone conversation, asking for information that can be independently verified or even attempting to meet in a public space.
The Defendant has claimed that he was merely role playing or living out a fantasy and that he believed it was an adult pretending to be a child and that he had no intent to entice or coerce anyone under 18 years old to engage in any sexual activity.
D.E. 87 at 25.1
The first paragraph of Mr. Orr’s requested instruction is little more than a
defendant-friendly commentary on the evidence. For example, the instruction states
that people “typically” weave a bit of truth about themselves with a great deal of
imagination, and that sexually explicit conversations “tend to drive the chatting
relationship.” It is only in the last sentence of the proposed instruction that we get
1 In the annotations and comments for the requested instruction, Mr. Orr cited Friedlander v. United States, 570 F. App’x 883 (11th Cir. 2014) as legal support for the requested instruction’s language. Friedlander deals with expert testimony related to internet fantasy in child pornography cases. See id. at 885. 24 Case: 18-11633 Date Filed: 07/01/2020 Page: 25 of 26
the legally recognizable defense, relating to the lack of the requisite criminal intent:
that because “Mr. Orr was merely role playing or living out a fantasy,” “he had no
intent to entire or coerce” a minor to engage in sexual activity. Id.
As Mr. Orr conceded at oral argument, the first part of his instruction was too
argumentative. See Oral Argument Recording at 6:58–7:16 (agreeing with the court
that “added verbiage” in the requested instruction “constitutes comment on the
evidence and is unnecessary verbiage”). And our cases hold that a defendant is not
entitled to an instruction that is more in the nature of legal argument or a judicial
narrative of his version of the facts than an objective instruction on the law. See
United States v. Barham, 595 F.2d 231, 244–45 (5th Cir. 1979). The district court
therefore did not err by refusing to give his instruction, and had no duty to re-write
it. Had the district court done otherwise, it would have impermissibly “place[d] . . .
the defendant[’s] desired factual findings into the mouth of the court,” Paradies, 98
F.3d at 1287 (citation omitted), instead of fulfilling its role of providing the jury with
neutral guidance about the issues for deliberation.
F
Mr. Orr’s final arguments are that the district court erroneously applied
sentencing enhancements that constituted impermissible double counting or
stacking, and by denying a request for a downward variance. At oral argument,
counsel conceded that “any error with respect to the calculation or application of the
25 Case: 18-11633 Date Filed: 07/01/2020 Page: 26 of 26
specific offense characteristics leading to the calculation of the adjusted offense
level is harmless because the district court in this matter imposed the mandatory
minimum sentence.” Oral Argument Recording at 3:45–4:02. See also id. at 4:10–
4:25 (“The court imposed the mandatory minimum of 180 months and again
regardless of what feelings trial counsel may have had with respect to the arguments
regarding the specific offense characteristics they had no impact on the sentence that
would be imposed.”). The same goes for any claim that the district court should
have varied downward by more, as it could not go below the 180-month statutory
minimum. Because Mr. Orr has waived these arguments, and they in any event lack
merit, we do not address them further.2
IV
After a close review of the record, briefing, and applicable law, and with the
benefit of oral argument, we affirm Mr. Orr’s conviction and sentence.
AFFIRMED.
2 Mr. Orr’s original trial counsel filed the opening brief, but Mr. Orr retained substitute counsel to file the reply brief and represent him at oral argument. 26