United States v. John Francis Williams , 684 F. App'x 767 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-15254
________________________
D.C. Docket No. 6:13-cr-00026-PGB-TBS-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHN FRANCIS WILLIAMS,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(April 3, 2017)
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Before TJOFLAT, HULL, and O’MALLEY, * Circuit Judges.
HULL, Circuit Judge:
Defendant John Williams appeals his conviction, as well as his sentence of
120 months’ imprisonment and subsequent 10 years’ supervised release. A jury
found Williams guilty on one count of having used the internet to attempt to induce
a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). On
appeal, Williams argues that the district court erred in: (1) refusing to entertain a
selective prosecution claim based on Williams’s socio-economic status;
(2) precluding expert witness testimony concerning Williams’s susceptibility to
inducement to commit this crime; and (3) refusing to modify the pattern jury
instructions on reasonable doubt and entrapment at Williams’s request. After
review of the record and the briefs, and with the benefit of oral argument, we
affirm Williams’s conviction and sentence.
I. BACKGROUND
A. Undercover Law Enforcement Operations
From October 10, 2012, through October 15, 2012, the Volusia County,
Florida Sheriff’s Office conducted an undercover “sting” operation targeting
individuals who were seeking, via the internet (“Craigslist”), to have sexual
*
Honorable Kathleen M. O’Malley, United States Circuit Judge for the Federal Circuit,
sitting by designation.
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relations with minors. The operation led to the arrest of twenty-three individuals
including Williams, a sixty-six-year-old cardiac anesthesiologist.
B. Offense Conduct
On October 11, 2012, Tallahassee Police Sergeant Sonia Bush, who was
working as part of the Volusia County Sheriff’s Office investigation, posted an
advertisement in the “personals,” “casual encounters” section of Craigslist entitled,
“still need help, need teacher–w4m–43 (Ormond beach).” “W4m” stood for
“Women for men.” The body of the ad read, “Been trying to find the right discreet
man to teach my daughter.”
Twenty minutes later, Williams responded to the ad, saying, “[W]hat age
group are you interested in?? 56 yo nice looking professional, very gentle and
romantic.” He identified himself as “John.” Sergeant Bush responded, saying,
“[N]ot really looking for age range,,, looking for experience, gentleness, and
patience,, and of course someone who is good at teaching a 14-year-old young
lady.” Twenty minutes after that, Williams responded, saying, “Not for me sorry[.]
John cell (803) 429 4924.”
Sergeant Bush then asked Williams why he gave her his number if he was
not interested. Williams responded:
Well when you told me her age I was afraid of a legal situation.
How would I know this is not a trap??
can we exchange pics?? or can you give me more
info/description??
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...
meet for brunch and talk this over ??
Sergeant Bush responded by sending a picture of a young girl on a swing,
explaining that “Sydney” was 14 years old and petite, with long dark hair and hazel
eyes. Sergeant Bush said that she did not know how to ease his fears that he was
being trapped but that, although she was not interested in men, her daughter was.
The next morning, on October 12, 2012, Williams responded by sending a
picture of himself and saying, “I am sending my pic, see what she thinks[.]” When
Sergeant Bush did not respond, Williams contacted her again a few hours later,
saying, “[G]uess you found someone to meet your needs ??” and, “Nicole, I am
guessing you found a better match for your needs but if you havent I hope you will
still consider me[.] John.”
At 6:30 p.m. that evening, Sergeant Bush replied, telling Williams that she
still had not found anyone. Two minutes later, Williams asked her if she had
received his picture and told her that he was in the Port Orange, Florida area.
Williams then asked again whether she had received his picture and told her that he
was in Port Orange. Williams asked her if they would like to meet for something to
eat or drink and said, “[w]e could talk it over and check each other out.” Sergeant
Bush told him that she had received his picture and would show it to her daughter
when she got home. Williams told her that he would wait for her reply.
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Later that day, Sergeant Bush told Williams that she was “in the process of
screening different men” and that “the biggest thing I need to know is what you
would teach her.” In response, Williams sent Sergeant Bush a long message,
describing in detail how he planned to perform a variety of sexual acts with the
girl.
At that point, Sergeant Bush showed the emails to her supervisors, who
determined that probable cause existed that a crime had been committed. Sergeant
Bush then responded to Williams, saying that everything sounded wonderful
except that her daughter wanted “her first time to be in her bedroom.” Williams
replied that would be fine but that they had to meet first. Sergeant Bush suggested
that Williams come over to her house where her daughter could make dinner. After
exchanging more messages, Williams agreed to come to the mother’s house that
night. Sergeant Bush provided Williams with directions to her home.
That night, Williams traveled to the address that Sergreant Bush gave him.
Once Williams arrived, he got out of his car and approached the front door
carrying a towel, a plastic grocery bag, and a canvas bag. Law enforcement agents
arrested Williams as he opened the door.
Williams’s grocery bag contained two bottles of wine, condoms, surgical
scrub pants, a man’s bathrobe, two bottles of lubricant, several sex toys, shaving
cream and a razor, toothpaste, a toothbrush, and two hairbrushes. A subsequent
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search of Williams’s vehicle revealed a large variety of additional sex toys and
devices, as well as ointments and lubricants. Williams had far more paraphernalia
than necessary to commit this single crime.
Further, following his arrest, Williams told a federal agent that he owned his
own plane and had flown from his home in South Carolina to Florida on October
10, 2012, the day before he began exchanging emails with Sergeant Bush.
C. Williams’s State Court Case and Transfer
Following Williams’s arrest, Williams was charged in state court with:
(1) use of a computer to seduce, solicit, or lure a child, in violation of Fla. Stat.
§ 847.0135(3)(a); (2) traveling to meet a minor after use of a computer to solicit a
child, in violation of Fla. Stat. § 847.0135(4)(a); and (3) unlawful use of a two way
communication device, in violation of Fla. Stat. § 934.215.5. All of the twenty-two
other arrestees also arrested during the Volusia County Sheriff’s Office’s October
10-October 15, 2015 undercover operation were charged with the same three state
law crimes.
In February 2013, the Assistant State Attorney (“ASA”) assigned to
Williams’s case, Tiffany Adleman, received a telephone call from Immigration and
Custom Enforcement Special Agent Joe Grey. Grey requested that Williams’s state
case be dismissed in favor of a federal prosecution. ASA Adleman offered to
transfer all of the cases that were filed in connection with the Volusia County
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Sheriff’s Office undercover operation. However, Agent Grey declined and was
only interested in prosecuting Williams.
D. Procedural History in Federal Court
On February 6, 2013, a federal grand jury returned an indictment charging
Williams with one count of using the internet to knowingly attempt to persuade,
induce, and entice an individual who had not attained the age of 18 years to engage
in sexual activity for which any person could be charged with a criminal offense
under Florida law, namely, lewd or lascivious battery, a violation of Florida Statute
800.04, all in violation 18 U.S.C. § 2422(b). The count carried a mandatory
minimum penalty of ten years’ imprisonment.
On March 19, 2013, the State of Florida dismissed the three state charges
pending against Williams in favor of the federal prosecution.
E. Williams’s Psychiatric Examination
On April 5, 2013, prior to Williams’s federal trial, Williams filed with the
district court an unopposed motion for psychological, psychiatric,
neuropsychological, and neurological evaluations, pursuant to 18 U.S.C. § 4241(b),
and to determine competency. The district court referred the motion to a magistrate
judge, who granted the motion and ordered Williams to undergo a psychiatric
examination to determine whether he was competent to stand trial. Williams was
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transferred to a federal detention center in Miami, Florida for a psychiatric
examination. On April 15, 2013, the psychiatric examination began.
F. Williams’s First Selective Prosecution Motion
On September 30, 2013, while the results of Williams’s psychiatric
examination were pending, Williams filed a motion to compel discovery and/or to
dismiss the indictment due to selective prosecution on the basis of his age,1 wealth,
and socio-economic status. In the motion, Williams noted that, although he had
been one of the twenty-three people who were arrested during the Volusia County
Sheriff’s Office undercover operation, only his case was selected for federal
prosecution. Williams requested that the district court allow him discovery to
determine whether he had been unconstitutionally selected for federal prosecution.
The motion was referred to a magistrate judge. On December 10, 2013, the
magistrate judge issued a report and recommendation finding that Williams had
successfully demonstrated that he was similarly situated to the arrestees who were
not prosecuted in federal court. The magistrate judge recommended, however, that
Williams’s motion be denied because he failed to show that the government’s
prosecution was based on a constitutionally impermissible motive. On April 21,
1
On appeal, Williams does not argue selective prosecution based on age. Accordingly, he
has abandoned any selective prosecution claim based on this characteristic. See Sapuppo v.
Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014); see also Singh v. U.S. Att’y Gen.,
561 F.3d 1275, 1278 (11th Cir. 2009).
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2014, the district court adopted the report and recommendation and denied
Williams’s motion.
G. Williams’s First Competency Hearing Leads to a Determination that
Williams Is Not Competent to Stand Trial
On May 13 and 14, 2014, nearly a year after Williams’s transfer to Miami
for a psychiatric examination, a magistrate judge conducted a competency hearing
regarding the results of the examination. At the hearing, the magistrate judge heard
testimony from: (1) Dr. Rodolfo Buigas, a forensic psychologist from the Bureau
of Prisons who had examined an MRI of Williams’s brain; (2) Dr. Kenneth C.
Fischer, who had conducted a neurological evaluation of Williams; (3) Dr. Frank
L. Quinn, a counselor who had worked with both Williams and his wife over
several years; and (4) Dr. Michael Rappaport, a clinical psychologist who had
evaluated Williams’s competency post-arrest. Following their testimony, the
magistrate judge recommended that the district court find that Williams was not
competent to stand trial. Neither party objected to the recommendation. On June 2,
2014, the district court adopted the recommendation and referred Williams to the
Federal Medical Center at Butner, North Carolina for further evaluation and
“restoration” treatment.
On August 19, 2014, Williams was transferred to the Federal Medical Center
at Butner, North Carolina. Dr. Maureen Reardon, a forensic psychologist, and Dr.
Tracy O’Connor Pennuto, Butner’s staff neuropsychologist, completed a
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neuropsychological consultation of Williams. On January 5, 2015, following
months of treatment, Drs. Reardon and Pennuto completed a written evaluation of
Williams and emailed it to the district court. The written evaluation declared that
Williams was now competent to stand trial. Upon receiving the written evaluation,
a magistrate judge scheduled Williams for a second competency hearing, to be held
on May 20, 2015.
H. Government Statement Prompting Renewed Selective Prosecution
Motion
On or about April 7, 2015, prior to Williams’s second competency hearing,
Williams’s counsel met with the government to discuss a number of other pretrial
matters. At this meeting, Williams’s counsel expressed frustration about
Williams’s alleged selective prosecution. In response, an Assistant United States
Attorney (“AUSA”) responded: “How many [of the co-arrestees] were doctors
who flew their own planes?”
On April 23, 2015, Williams’s counsel notified the district court that,
partially as a result of the AUSA’s remark, Williams would be filing a renewed
motion on Williams’s selective prosecution claim. On July 13, 2015, Williams
filed a renewed motion to dismiss the indictment and/or for limited discovery due
to selective prosecution. In the motion, Williams argued that he had been
selectively chosen for prosecution on account of his wealth and socio-economic
status. The district court denied Williams’s renewed selective prosecution motion,
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finding that Williams again failed to establish that the government’s prosecution
was due to a discriminatory motive.
I. Williams’s Second Competency Hearing Leads to a Determination that
Williams Is Competent to Stand Trial
On May 20, 2015, a magistrate judge conducted Williams’s second
competency hearing. During the hearing, both Dr. Reardon and Dr. Pennuto
testified regarding their examination of Williams and their report, in which they
found that Williams was competent to stand trial. Dr. Pennuto testified that she had
determined that most of Williams’s cognitive functioning was fully intact.
Dr. Reardon testified that, although Williams had suffered a mild decline in some
areas of cognitive abilities, he was still functioning very well and higher than most.
The magistrate judge entered a sealed report and recommendation,
recommending that the district court find that Williams was competent to stand
trial. On July 13, 2015, the district court issued an order adopting the
recommendation and setting the case for trial, to be held on August 26, 2015.
J. Government’s Motions In Limine; Daubert Hearing
On August 10, 2015, the United States filed a motion in limine seeking to
exclude Dr. Rappaport’s testimony from the first competency hearing concerning
Williams’s mental condition. Williams filed a response, asserting that Dr.
Rappaport’s opinion was admissible as to his entrapment defense. Williams also
gave notice that he intended to introduce at trial the testimony provided by Drs.
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Fischer and Quinn at his first competency hearing. The government filed an
additional motion in limine seeking to exclude their testimony as well.
On August 24, 2015, the district court entered an order stating that it would
need to address the various motions in limine through a Daubert hearing to
determine the admissibility of the proffered experts. 2 At the beginning of trial on
August 26, 2015, the district court conducted the Daubert hearing.
At the hearing, Dr. Rappaport testified that, in March 2013, he conducted a
mental status examination of Williams and referred him to Dr. Fischer for
neurological testing to determine the cause of Williams’s purported neurological
deficiencies. 3
Dr. Rappaport testified that Dr. Fischer’s resulting neurological report—
showing that Williams had some form of brain disease—corroborated Dr.
Rappaport’s suspicions about Williams’s cognitive deficiencies. Dr. Rappaport
concluded that Williams’s “executive function was impaired and that he was very
susceptible to certain things.” Dr. Rappaport testified further that he had
determined that Williams had “executive-functioning problems,” i.e., problems
with his decision-making process.
2
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993) (holding that
the trial court must assess whether an expert is qualified to testify competently regarding the
matters he intends to address); see also United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir.
2004).
3
A neurological evaluation looks at the structure of the brain.
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Williams’s counsel asked Dr. Rappaport to explain his basis for concluding
from his March 2013 examination that Williams was “unduly susceptible to certain
things.” Dr. Rappaport responded that Williams was a “68-year-old brain-impaired
man, who was at that time by himself, isolated and very lonely, . . . who could
easily have been manipulated by other people much more easily manipulated than
[his attorney] or you or me or the court reporter.” The district court asked: “Based
upon what peer-reviewed study?” Dr. Rappaport replied: “Based upon my
examination of him . . . and the validation of my examination by [Dr. Fischer] . . .
who evaluated [the] actual picture of his brain.” Dr. Rappaport also testified that
“[t]here’s all kinds of stuff about how older people are susceptible to
manipulation.”
On cross-examination, Dr. Rappaport confirmed that he had first seen
Williams in March 2013, six months after his arrest. Dr. Rappaport further testified
that none of the tests that he had administered in March 2013 were capable of
assessing Williams’s mental condition on the night of his arrest in October 2012.
However, Dr. Rappaport testified that he could assess the condition of Williams’s
mental state on that night by considering Williams’s later behavior, as well as
“what [Williams’s] family had told [him].”
Government counsel asked Dr. Rappaport to explain how he could show that
Williams’s mental state made him susceptible to inducement to commit this crime
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in October 2012. Dr. Rappaport responded by saying that “the best predictor
usually of future behavior is past behavior” and that Dr. Fischer’s neurological
conclusion—that the changes in Williams’s brain had been occurring for some
time—was consistent with what he had learned about Williams’s behavior from
Williams’s family members.
Following the hearing, the district court granted the government’s motions in
limine, finding that none of Williams’s doctors’ testimony met the Daubert
standard for admissibility.
As to Drs. Fischer and Quinn, the district court first noted that Dr. Fischer
had not attempted to connect his findings on the physical changes to Williams’s
brain to his particular susceptibility to inducement to commit this crime—he had
opined only on Williams’s competency to stand trial. The district court further
noted that Dr. Quinn had not correlated his observations of Williams to Williams’s
susceptibility to inducement. Therefore, the district court determined that the
reports and testimony of Drs. Fischer and Quinn would only be admissible to the
extent that they provided foundational evidence in support of Dr. Rappaport’s
testimony, the only doctor to testify on the relationship between Williams’s mental
state and his susceptibility to inducement to commit this crime.
As to Dr. Rappaport, the district court noted that he had been unable to
identify any peer-reviewed methodology for identifying how, or to what extent, a
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person’s cognitive decline causes him to be more susceptible to inducement. The
district court stated:
There’s no indication that Dr. Rappaport’s analysis in terms of
the connection between what he observed and what Dr. Fischer saw
and the ultimate conclusion of susceptibility is in fact subject to peer
review publication or has been or can—that it can be repeated in a
reliable manner. There is no indication in the record that I saw that the
technique of a clinical psychologist evaluating a patient and relying
upon the objective findings of the neurologist is generally accepted in
the scientific community to demonstrate susceptibility to suggestion.
The district court further noted that Dr. Rappaport could not point to a
scientific methodology showing how his March 2013 examination could accurately
show that Williams was susceptible to inducement to commit this crime in October
2012.
Accordingly, the district court determined that Dr. Rappaport’s testimony
was not admissible under the Daubert standard. As a result, the district court
further determined that the admission of the testimony of Drs. Quinn and Fischer
would be more prejudicial than probative since neither had opined on susceptibility
to inducement and their testimony could only be foundational to Dr. Rappaport’s
now inadmissible testimony.
K. Defense’s Proffered Testimony
Following the district court’s ruling on the admissibility of the testimony of
Drs. Rappaport, Fischer, and Quinn, Williams’s counsel proffered the testimony
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that the doctors would have presented if the district court had not granted the
government’s motions in limine.
Williams’s counsel proffered that, had Dr. Quinn been permitted to testify,
he would have stated that by July 8, 2002—approximately ten years prior to
Williams’s arrest—Dr. Quinn had diagnosed Williams with a major mental disease
or defect. Dr. Quinn would have explained that, on October 24, 2012, shortly after
Williams’s arrest, Williams requested that Dr. Quinn conduct a mental status
evaluation of Williams because Williams was concerned about his cognitive
function and poor memory. Shortly after Williams’s October 2012 arrest, Dr.
Quinn would have diagnosed Williams with recurrent attention deficit disorder and
depression. Dr. Quinn would have testified that, during the time leading up to
Williams’s arrest, Williams was in a “fugue” state or a manic episode brought on
by withdrawal from prescription medication. 4
In addition, Williams’s counsel proffered that, had Dr. Fischer testified, he
would have stated that, since 1971, he frequently appeared as an expert witness in
federal and state court proceedings as a treating neurologist. He would have
testified that he conducted a comprehensive neurological evaluation of Williams in
May 2013 while Williams was in custody at the federal detention center in Miami.
4
A fugue state is an episode in which the individual is not aware of an act he or she may
have done and has no memory of it; a manic episode is a state in which the individual essentially
feels “bulletproof” and has no concept of the consequences of his or her actions.
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The evaluation included review and assessment of Williams’s medical history and
executive functioning, which Dr. Fischer described as Williams’s ability to
organize his life and carry out specific activities in a coherent manner. Dr. Fischer
would have testified that his evaluation concluded that Williams was suffering
from some form of dementia and cognitive decline, which necessarily adversely
effected Williams’s executive functioning, i.e., decision-making ability.
Williams’s counsel proffered that, had Dr. Rappaport testified at trial, he
would have testified that he initially met with Williams on March 11, 2013, in the
Seminole County Jail and examined him. Dr. Rappaport would have testified that,
in 2013, Williams: (1) presented with a “flat” affect; (2) was unable to count
backwards from 100 by 7; and 5 (3) showed clearly poor problem-solving skills.
Dr. Rappaport would have testified to a “reasonable psychological certainty” that
someone suffering from the same or similar mental health deficits and defects as
Williams would have been more susceptible to suggestion, manipulation, and
inducement to commit this crime by third parties.
L. Reasonable Doubt Jury Instruction
On August 28, 2015, the third day of trial, the district court held a jury-
instruction conference. At the jury-instruction conference, Williams objected to the
5
Counting backwards from 100 by 7 is a test for the existence of cognitive dysfunction; it
forms part of the Mini Mental Status Examination (“MMSE”), an examination that Williams
alleges is a generally accepted methodology for federal and state court proceedings in both civil
and criminal cases to assist in determining one’s mental health.
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district court’s proposed use of the Eleventh Circuit pattern jury instruction on
reasonable doubt. The pattern jury instruction reads, in relevant part: “The
Government’s burden of proof is heavy, but it doesn’t have to prove a Defendant’s
guilt beyond all possible doubt. The Government’s proof only has to exclude any
‘reasonable doubt’ concerning the Defendant’s guilt.”
Through his objection, Williams sought to strike the word “only” from the
pattern jury instruction, arguing that it lessened the government’s burden of proof.
The district court overruled the objection, explaining: “I think the instruction in its
totality makes it clear that the jury doesn’t have to exclude all possible doubt,
including hypothetical or fanciful doubt, but only a reasonable doubt, which is then
[later] defined.” The district court ultimately read to the jury the full pattern jury
instruction on reasonable doubt, including the word “only.”
M. Entrapment Jury Instruction
Williams also requested that the district court modify the Eleventh Circuit
pattern jury instruction concerning entrapment. Williams proposed to add three
provisions (underlined below) to the relevant portion of the pattern jury instruction
on entrapment:
But there is no entrapment when a defendant is willing to
violate the law and the Government merely provides what appears to
be a favorable opportunity for the defendant to commit a crime.
However, in determining one’s willingness or unwillingness to violate
the law, the jury is permitted to consider evidence of the defendant’s
state of mind and diminished mental health.
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For example, it’s not entrapment for a Government agent to
pretend to be someone else and offer—directly or through another
person—to engage in an unlawful transaction. However, it is
entrapment if the defendant, as a direct result of diminished mental
health, was more easily induced and/or persuaded by the Government
to engage in the unlawful behavior.
...
But if, as a result of the defendant’s diminished mental health,
there is a reasonable doubt about whether the Defendant was willing
to commit the crime without the persuasion of a Government officer
or a person under the Government’s direction, then you must find the
Defendant not guilty.
The government did not object to the inclusion of Williams’s first proposed
revision but did object to the inclusion of the others. As to the second proposed
revision, the district court determined that revision should not be included because,
without the testimony of Dr. Rappaport, no witness testimony supported
application of the proposition to this case. As to the third proposed revision, the
district court stated that, because “diminished mental health, proven through the
proper means or matter, can and should be considered in terms of inducement,” the
third proposed revision was appropriate. The district court agreed to include the
first and third proposed revisions but not the second proposed revision.
However, after Williams presented his defense case, the district court told
counsel for both parties that it would “give the Eleventh Circuit pattern [on
entrapment] without a reference to mental disease or defect . . . because . . . mental
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disease or defect requires evidence from a licensed physician of some kind that can
draw the nexus.” During the jury instructions, the district court read the pattern
jury instruction on entrapment to the jury without including Williams’s first and
third proposed revisions.
On August 31, 2015, the jury returned a verdict of guilty against Williams
on the charged offense. On November 24, 2015, Williams timely appealed.
II. SELECTIVE PROSECUTION
A. Standard of Review
In reviewing the denial of a motion to dismiss for selective prosecution, this
Court reviews the district court’s factual findings for clear error and its legal
conclusions de novo. United States v. Jordan, 635 F.3d 1181, 1185 (11th Cir.
2011). This Court reviews for abuse of discretion a district court’s denial of a
request for discovery in a selective prosecution claim. Id. “An abuse of discretion
can occur where the district court applies the wrong law, follows the wrong
procedure, bases its decision on clearly erroneous facts, or commits a clear error in
judgment.” United States v. Brown, 415 F.3d 1257, 1266 (11th Cir. 2005).
B. Relevant Law
Selective prosecution claims are analyzed under the equal protection
component of the Fifth Amendment’s Due Process Clause. See United States v.
Armstrong, 517 U.S. 456, 464, 116 S. Ct. 1480, 1486 (1996). Equal protection
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dictates that “the decision whether to prosecute may not be based on an
unjustifiable standard such as race, religion, or other arbitrary classification.”
Jordan, 635 F.3d at 1188 (internal citations and quotations omitted).
“In order to dispel the presumption that a prosecutor has not violated equal
protection, a criminal defendant must present clear evidence to the contrary.”
United States v. Smith, 231 F.3d 800, 807 (11th Cir. 2000) (quoting Armstrong,
517 U.S. at 465, 116 S. Ct. at 1486). To establish a selective prosecution claim, the
defendant must show that: (1) the “prosecution had a discriminatory effect, i.e.,
that similarly situated individuals were not prosecuted,” and; (2) “that the
difference in treatment, or selectivity of the prosecution, was motivated by a
discriminatory purpose.” Id. at 809. The discriminatory purpose prong requires that
“the decisionmaker selected or reaffirmed a particular course of action at least in
part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable
group.” Jordan, 635 F.3d at 1188 (quoting Wayte v. United States, 470 U.S. 598,
610, 105 S. Ct. 1524, 1532 (1985)).
A defendant may obtain discovery in support of a selective prosecution
claim where the defendant provides “some evidence tending to show the existence
of the essential elements of the defense.” Armstrong, 517 U.S. at 468, 116 S. Ct. at
1488.
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C. Discussion
The government does not dispute the district court’s determination that
Williams was similarly situated to the other arrestees in that Williams committed
the same crime in similar circumstances. 6 Accordingly, we limit our review to
whether the government selectively prosecuted Williams based on a discriminatory
motive or, alternatively, whether the district court abused its discretion in denying
Williams the opportunity to conduct discovery on that question.
In his brief on appeal, Williams recognizes that “there does not (yet) appear
to be a Federal case dismissing an indictment due to selective prosecution on the
basis of a defendant’s wealth.” Nonetheless, Williams asserts that the “law is
clear” that “wealth and socioeconomic status are ‘off limits’ as far as disparate
treatment in the criminal justice system is concerned.” See McDonald v. Bd. of
Election Comm’rs, 394 U.S. 802, 807, 89 S. Ct. 1404, 1407-08 (1969) (“[A]
careful examination on our part is especially warranted where lines are drawn on
the basis of wealth or race . . . two factors which would independently render a
classification highly suspect and thereby demand a more exacting judicial
scrutiny.”); Harper v. Va. Bd. of Elections, 383 U.S. 663, 668, 86 S. Ct. 1079,
1082 (1966) (“Wealth, like race, creed, or color, is not germane to one’s ability to
6
Because the district court determined that Williams was similarly situated to the twenty-
two other arrestees and the government did not timely object to that finding, the government has
waived any objection to the finding. See United States v. Garcia-Sandobal, 703 F.3d 1278, 1283
(11th Cir. 2013).
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participate intelligently in the electoral process.”); Griffin v. Illinois, 351 U.S. 12,
19, 76 S. Ct. 585, 591 (1956) (“There can be no equal justice where the kind of
trial a man gets depends on the amount of money he has.”).
Even assuming arguendo that Williams’s argument—that prosecution may
not be based on one’s wealth vis-à-vis other potential defendants—is true,
Williams points to no credible evidence suggesting that the government selectively
chose to prosecute him because of his wealth.
Williams’s alleged evidence offered to show discriminatory intent is the
AUSA’s comment to Williams’s counsel—“How many [of the co-arrestees] were
doctors who flew their own planes?”—made over two years after Williams’s
federal indictment. This comment does not specifically mention wealth at all. And
though Williams asks us to infer a concern about Williams’s wealth from the
comment, under the factual circumstances of this case, the comment more
reasonably reflects the prosecutor’s concern about Williams’s mobility to readily
travel to where his minor victim was or might be once Williams made online
contact, or to spirit the child away. In fact, Williams flew the day before from
South Carolina to Florida, which enabled him to go to the victim’s residence the
next day. Williams also provides no concrete evidence as to the relative wealth or
poverty of the other arrestees.
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Without more, Williams has provided no credible evidence showing that the
government harbored a discriminatory motive against Williams on the basis of his
wealth or status. Accordingly, the district court did not err in denying Williams’s
motion to dismiss the indictment on this basis or in refusing to allow Williams to
conduct discovery on the issue.
III. ADMISSIBILITY OF EXPERT TESTIMONY
A. Standard of Review
This Court reviews “district court[] decisions regarding the admissibility of
expert testimony and the reliability of an expert opinion” for abuse of discretion.
United States v. Frazier, 387 F.3d 1244, 1258 (11th Cir. 2004).
B. Applicable Law
A successful entrapment defense has two elements: (1) governmental
inducement of the crime; and (2) lack of predisposition on the part of the
defendant. United States v. Brown, 43 F.3d 618, 623 (11th Cir. 1995). The
defendant bears the initial burden of production to show government inducement.
United States v. Sistrunk, 622 F.3d 1328, 1333 (11th Cir. 2010). Once the
defendant has met his burden to show evidence of government inducement, the
burden shifts to the government to prove beyond a reasonable doubt that the
defendant was predisposed to commit the crime, and the question of entrapment
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becomes a factual one for the jury to decide. United States v. Ryan, 289 F.3d 1339,
1344 (11th Cir. 2002).
A defendant may show inducement by producing evidence sufficient to raise
a jury issue “that the government’s conduct created a substantial risk that the
offense would be committed by a person other than one ready to commit it.”
Brown, 43 F.3d at 623 (quoting United States v. Andrews, 765 F.2d 1491, 1499
(11th Cir. 1985)). Evidence of the government’s “mere suggestion of a crime or
initiation of contact is not enough.” Id. Rather, “government inducement requires
an element of persuasion or mild coercion,” which consists of “excessive pressure
or manipulation of a non-criminal motive.” Id.
“Regardless of the defendant’s ability to engage in criminal acts . . . the
prompt commission of the crime at the first opportunity is enough to show
predisposition.” Id. at 624.
Williams sought to introduce the testimony of Drs. Rappaport, Fischer, and
Quinn as expert testimony. An expert’s testimony is admissible if: (1) the expert’s
“specialized knowledge will help the trier of fact to understand the evidence or to
determine a fact in issue”; (2) “the testimony is based on sufficient facts or data”;
(3) “the testimony is the product of reliable principles and methods”; and (4) “the
expert has reliably applied the principles and methods to the facts of the case.”
Fed. R. Evid. 702. “The task of ensuring that an expert’s testimony both rests on a
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reliable foundation and is relevant to the task at hand is assigned to the district
court.” United Fire & Cas. Co. v. Whirlpool Corp., 704 F.3d 1338, 1341 (11th Cir.
2013) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597, 113 S. Ct.
2786, 2799 (1993)). “The admissibility standard is a liberal one, and . . . the
rejection of expert testimony is the exception rather than the rule.” Frazier, 387
F.3d at 1293-94.
In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court
established several factors for courts to consider in determining whether to admit
an expert’s testimony: (1) whether the expert’s methodology has been tested or is
capable of being tested; (2) whether the theory or technique used by the expert has
been subjected to peer review and publication; (3) whether there is a known or
potential error rate of the methodology; and (4) whether the technique has been
generally accepted in the relevant scientific community. 509 U.S. at 593-94, 113 S.
Ct. at 2796-97. These factors “are not exhaustive and are intended to be applied in
a ‘flexible’ manner.” United Fire and Cas. Co., 704 F.3d at 1341 (quoting Kumho
Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S. Ct. 1167, 1171 (1999)).
The focus of the inquiry contemplated by Rule 702 and Daubert “must be solely on
principles and methodology, not on the conclusions that they generate.” Daubert,
509 U.S. at 595, 113 S. Ct. at 2797.
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C. Discussion
A threshold question here is whether testimony of Williams’s cognitive
impairment is even relevant to an alleged entrapment defense, as opposed to an
insanity defense or a claim that Williams was not competent to stand trial. While
the parties concede that it is relevant, and some non-binding case law seems to
support that concession, this Circuit has never expressly held that it is. We do not
answer that question here because there was no error in any event.
In this case, Dr. Fischer did not opine on Williams’s potential susceptibility
to inducement—his given report and testimony focused only on the effect of
Williams’s brain disease as it related to his competency to stand trial. Similarly,
Dr. Quinn expressed no pretrial opinion regarding Williams’s susceptibility to
inducement to commit this crime, having testified only about his observations of
Williams in connection with Williams’s competence to assist in his defense at trial.
Therefore, the district court did not err in determining that, as a threshold matter,
the testimony of Drs. Quinn and Fischer would only be admissible if they related to
Dr. Rappaport’s testimony concerning the relevant issue before the district court—
Williams’s susceptibility to inducement.
However, although Dr. Rappaport testified at the Daubert hearing about
Williams’s general loss of executive function and decision-making ability, his
testimony did not tie the decline in Williams’s cognitive function to an accepted
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scientific methodology showing that that decline had caused Williams to be
particularly susceptible to inducement at the time of his offense. Rather, Dr.
Rappaport described the various tests that he had performed to determine
Williams’s competency to stand trial, concluding that “the aberrations [he had
found] in [Williams’s] mental status examination were . . . most probably, . . .
organically based.” In other words, “[Williams] has some form of brain disease.”
Although Dr. Rappaport testified repeatedly that Williams was experiencing
problems with executive functioning and decision-making due to that brain
disease, Dr. Rappaport also testified that none of the tests that he had administered
had been capable of assessing Williams’s mental condition on the night of his
arrest in October of 2012, the relevant inquiry for Williams’s entrapment defense.
Dr. Rappaport also testified that neither he nor anyone else would be able to say
what the structure of Williams’s brain had been at that time. Further, Dr.
Rappaport testified that there is no peer-reviewed body of literature that shows
that, when a PET scan or MRI shows that the frontal lobe of a person’s brain is
damaged—as the studies of Williams’s brain showed here—that person will be
particularly susceptible to inducement to commit a crime, much less a sex crime
with a 14-year-old victim.
Therefore, although Williams established that Dr. Rappaport had
administered tests and evaluations that constituted accepted techniques for
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determining Williams’s mental status and mental problems at the time of his
March 2013 examination, he did not establish how those tests and techniques
determined (through a scientifically acceptable methodology) whether Williams
had been particularly susceptible to inducement to commit this crime on or around
October 2012. “[I]f an expert opinion does not have a ‘valid scientific connection
to the pertinent inquiry’ it should be excluded.” Boca Raton Cmty. Hosp., Inc. v.
Tenet Health Care Corp., 582 F.3d 1227, 1232 (11th Cir. 2009) (quoting Daubert,
509 U.S. at 592, 113 S. Ct. at 2796).
Williams argues that Dr. Rappaport was prepared to testify about his own
personal experience in treating patients with a diagnosed decline in executive
function. However, neither Dr. Rappaport’s report nor his proffered testimony
explained how his personal experience was relevant to the question of whether a
decline in executive function caused one to be particularly susceptible to
inducement to commit this crime.
Given that Dr. Rappaport did not identify a scientifically accepted method
connecting his observations of Williams with a finding of susceptibility to
inducement to commit this crime, the district court did not abuse its discretion in
barring his testimony. And because Dr. Rappaport’s testimony was inadmissible,
the district court also did not abuse its discretion in barring the testimony of Drs.
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Fischer and Quinn, whose testimony was relevant only as a foundation for the
testimony of Dr. Rappaport.
IV. FAILURE TO GIVE A REQUESTED JURY INSTRUCTION
A. Applicable Law
This Court reviews “a district court’s refusal to give a requested jury
instruction for abuse of discretion.” United States v. Carrasco, 381 F.3d 1237, 1242
(11th Cir. 2004). A district court’s failure to give a requested jury instruction is an
abuse of discretion if the requested instruction “(1) was correct, (2) was not
substantially covered by the charge actually given, and (3) dealt with some point in
the trial so important that failure to give the requested instruction seriously
impaired the defendant’s ability to conduct his defense.” United States v. Eckhardt,
466 F.3d 938, 947-48 (11th Cir. 2006). This Court “will not reverse a conviction
unless [it] find[s] that issues of law were presented inaccurately or the charge
improperly guided the jury in such a substantial way as to violate due process.”
United States v. Perez-Tosta, 36 F.3d 1552, 1564 (11th Cir. 1994).
B. The Reasonable Doubt Instruction
Williams challenges the district court’s use of the pattern jury instruction on
reasonable doubt, which again states, in relevant part: “The Government’s burden
of proof is heavy, but it doesn’t have to prove a Defendant’s guilt beyond all
possible doubt. The Government’s proof only has to exclude any reasonable doubt
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concerning the Defendant’s guilt.” We first put that sentence in the context of the
full jury instruction on reasonable doubt, which states:
The indictment or formal charge against a Defendant isn’t
evidence of guilt. The law presumes every Defendant is innocent. The
Defendant does not have to prove his innocence or produce any
evidence at all. The Government must prove guilt beyond a
reasonable doubt. If it fails to do so, you must find the Defendant not
guilty.
The Government’s burden of proof is heavy, but it doesn’t have
to prove a Defendant’s guilt beyond all possible doubt. The
Government’s proof only has to exclude any reasonable doubt
concerning the Defendant’s guilt.
A “reasonable doubt” is a real doubt based on your reason and
common sense after you’ve carefully and impartially considered all
the evidence in the case.
“Proof beyond a reasonable doubt” is proof so convincing that
you would be willing to rely and act on it without hesitation in the
most important of your own affairs.
If you are convinced that the Defendant has been proved guilty
beyond a reasonable doubt, say so. If you are not convinced, say so.
Williams argues that the use of the word “only” necessarily “lessens the
Government’s burden of proof” and “improperly implies that [Williams] has at
least some burden to put forth a case against the Government’s.”
Williams’s argument is without merit. The charge first clearly shows that the
government “must prove guilt beyond a reasonable doubt” and that, if it does not,
the jury “must find the Defendant not guilty.” In the next paragraph, inclusion of
the word “only,” particularly in the context of the entire jury instruction, does not
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alter the jury’s charge that the government bears a “heavy” burden to exclude
“any” reasonable doubt as to the defendant’s guilt. Rather, it “guards against a
reading of ‘reasonable doubt’ that would require the Government to disprove all
possible doubt—a burden higher than the law requires.” United States v. Rosin,
263 F. App’x 16, 31 (11th Cir. 2008) (unpublished). The district court reiterated
this reasoning in its discussion of Williams’s proposed jury instruction : “[T]he
[pattern jury] instruction in its totality makes it clear that the jury doesn’t have to
exclude all possible doubt, including hypothetical or fanciful doubt, but only a
reasonable doubt, which is then [later] defined.”
Williams fails to show that the inclusion of this single word “only” would
offer a materially different jury instruction than the one he proposes, much less that
the pattern jury instruction would so mislead the jury as to deny Williams his
constitutional right to due process. See Eckhardt, 466 F.3d at 948; Perez-Tosta, 36
F.3d at 1564. Accordingly, the district court did not abuse its discretion in refusing
to give this proposed jury instruction.
C. The Entrapment Instruction
Williams also argues that the district court erred in failing to include several
proposed revisions to the pattern entrapment jury instruction. These revisions
highlighted Williams’s state of mind and diminished mental health. Williams
argues that these revisions were “essential” to Williams’s entrapment defense
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because they highlighted physiological factors that made Williams unusually
susceptible to inducement to commit this crime and to government entrapment.
Although the district court originally agreed to include Williams’s proposed
revisions, it ultimately did not because—following the district court’s exclusion of
the proposed expert testimony about Williams’s psychological health—the
revisions no longer applied. Indeed, the testimony of Drs. Rappaport, Fischer, and
Quinn constituted the only possible expert testimony concerning the claim that
Williams’s psychological health made him particularly susceptible to inducement
to commit this crime. And it is undisputed that a lay witness could not testify to
this specialized knowledge. See Fed. R. Evid. 702. Because the district court
barred admission of these experts’ testimony following the Daubert hearing,
Williams thus presents no evidentiary support for the principle he seeks to
highlight in his proposed revisions to the pattern entrapment jury instruction.
Accordingly, the district court also did not err in refusing to include these proposed
revisions.
V. CONCLUSION
For all of these reasons, we affirm Williams’s conviction and sentence.
AFFIRMED.
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