United States v. Theodore Harmon

593 F. App'x 455
CourtCourt of Appeals for the Sixth Circuit
DecidedNovember 21, 2014
Docket13-4365
StatusUnpublished
Cited by9 cases

This text of 593 F. App'x 455 (United States v. Theodore Harmon) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Theodore Harmon, 593 F. App'x 455 (6th Cir. 2014).

Opinion

OPINION

BERNICE BOUIE DONALD, Circuit Judge.

Theodore R. Harmon (“Harmon”) appeals his jury conviction and sentence pursuant to 18 U.S.C. § 2242(b). 18 U.S.C. § 2242(b) criminalizes an attempt to persuade, coerce, or entice a minor to engage *458 in sexual activity while utilizing means of interstate commerce. Harmon pled not guilty to a charge under this statute, but was convicted by a jury and subsequently-sentenced to 168 months’ incarceration, to be followed by lifetime supervised release. Harmon’s appeal concerns both his conviction and sentence. First, Harmon alleges that the district court abused its discretion in admitting evidence of his statements that he had prior sexual experience with underage girls, and also in admitting evidence of an overnight bag that was found in his car at the time of his arrest. Second, Harmon challenges the sufficiency of evidence proving each element of the crime beyond a reasonable doubt, and specifically argues that the Government failed to show that Harmon had the intent to entice. Third, Harmon argues that the district court erred in giving Jury Instruction 20, which clarified the meaning of the words “persuade, induce, entice, or coerce” as used in the statute, because the instruction was allegedly not supported by law and misled the jury. Fourth, Harmon contends that the district court committed procedural error in sentencing because the court did not provide a specific explanation for imposing a life term of supervised release. For the reasons explained below, we AFFIRM Harmon’s conviction and the district court’s sentencing order.

I.

In 2012, the Department of Homeland Security (“DHS”) began investigating Harmon after he posted a personal ad on the website www.motherless.com, seeking an 18- to 24-year-old woman for a sexual encounter involving a dominance and submission relationship and daddy-daughter role play. Michael Spadafora (“Agent Spadafora”), an undercover DHS agent based in Florida, responded to Harmon’s ad while posing as the father of a fictitious 14-year-old girl named Brooke. Agent Spadafora asked whether Harmon was “interested in young” and would like to meet him and his “daughter” on their upcoming trip to Ohio. PagelD 629-30. Harmon responded that he had “had sex with a lot of underage girls ... but they were all willing and loved it.” PagelD 653. The following week, Harmon and Agent Spadafora communicated through emails, chatrooms, text messages, and phone calls. In the course of those communications, Harmon expressed concern about encountering undercover police officers and mentioned that he had been caught in a sting operation previously and feared being caught again. Harmon also advised Agent Spadafora how to disguise communications about having sex with minors in order to avoid being caught.

Though he was communicating only with Agent Spadafora, Harmon was very interested in “Brooke’s” thoughts, preferences, and feedback. For example, Harmon inquired about “Brooke’s” sexual preferences and discussed various sex acts he wanted to perform with her. Harmon asked for pictures of “Brooke” in her underwear and sent a nude photo of himself to Agent Spadafora to show his “daughter.” Harmon repeatedly asked about “Brooke’s” response to his photo and whether she liked it. He also asked whether “Brooke” drank alcohol and learned that “father” and “daughter” both liked Coors Light beer, which Harmon offered to bring when they met. Harmon asked Agent Spadafora if he should take “Brooke” out to dinner and spend a whole night with her. Harmon reassured Agent Spadafora that his “daughter” would be in experienced, safe, and disease-free hands.

Harmon eventually arranged a meeting for March 14, 2012, with Agent Spadafora at the Knights Inn motel in Rossford, Ohio. On the day of the meeting, Agent *459 Spadafora and Harmon exchanged text messages and it appeared as though the meeting would fall through when Agent Spadafora texted Harmon, “[I]t’s cool if you’re not coming. I may take Brooke to Cleveland tonight.” PagelD 672. In response, Harmon asked Agent Spadafora, “Can I call and talk to her?” PagelD 672-73. Agent Spadafora made a recorded phone call with Harmon, during which Harmon spoke with a female undercover officer portraying the 14-year-old Brooke. Reassured that the plan was on track, Harmon arrived at the motel and was arrested. A search of the trunk of his vehicle revealed an 18-pack of Coors Light beer, and a black overnight bag containing condoms, sex toys, a blindfold/sleeping mask, ropes, knotted sheet strips, towels, lotion, and hair clips. Harmon’s cell phone was also seized. It contained call logs and text messages relating to the meeting at the motel.

On April 4, 2012, an indictment was returned charging Harmon with using a facility or means of interstate commerce to attempt to knowingly persuade, induce, or entice an individual, who he believed was 14 years old, to engage in sexual activity under circumstances which would constitute a criminal offense in the State of Ohio, in violation of 18 U.S.C. § 2422(b).

Harmon pled not guilty and moved to suppress statements he made to officers when arrested. An evidentiary hearing was held, and the court denied the motion to suppress. Harmon subsequently filed a motion to dismiss the indictment, which was denied. Harmon then filed a motion in limine asking that any reference to a prior criminal record be excluded, which the Government agreed to. He also asked the court to exclude the contents of the bag that was seized at the time of his arrest. The court denied the motion in limine without prejudice.

Following a jury trial held on May 29 and 30, 2013, Harmon was found guilty of the sole count charged. The presentence report (“PSR”) noted that the mandatory minimum term for a conviction under 18 U.S.C. § 2422(b) is from ten years up to life imprisonment, followed by supervised release of five years, up to a life term. The PSR calculated Harmon’s Total Offense Level at 30 and his Criminal History Category at IV, corresponding to a guideline range of 135 to 168 months imprisonment. On November 6, 2013, the district court sentenced Harmon to 168 months imprisonment, followed by a life term of supervised release.

On November 7, 2013, a timely notice of appeal was filed in this Court. Subsequently, Harmon filed a separate pro se notice of appeal on November 15, 2013, which was dismissed as a duplicate on November 26, 2013. We consider each of Harmon’s arguments in turn.

II.

Harmon’s first argument is that the district court improperly admitted (1) evidence of his statements that he had prior sexual experience with underage girls, and (2) contents of the overnight bag found in his car at the time- of his arrest. We review the admissibility of evidence for abuse of discretion. United States v. Cecil, 615 F.3d 678, 688 (6th Cir.2010); United States v. Blackwell, 459 F.3d 739, 752 (6th Cir.2006).

A.

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Bluebook (online)
593 F. App'x 455, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-theodore-harmon-ca6-2014.