United States v. Kenneth Chase , 367 F. App'x 979 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-11312 ELEVENTH CIRCUIT
MARCH 3, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-00133-CR-TWT-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH CHASE,
a.k.a. Kenneth V. Chase,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(March 3, 2010)
Before EDMONDSON, BIRCH and BLACK, Circuit Judges.
PER CURIAM:
Kenneth Chase appeals his conviction and 188-month sentence for using a
computer to attempt to entice a minor to engage in unlawful sexual activity, in
violation of 18 U.S.C. § 2422(b). Chase asserts three arguments on appeal, which
we address in turn. After review, we affirm Chase’s conviction and sentence.
I.
Chase first contends § 2422(b) does not permit conviction when a minor is
not present. Chase asserts he never spoke with anyone except for an undercover
law officer, and in the absence of an actual child victim, he cannot be convicted
under 18 U.S.C. § 2422(b) without reading words into the statute that are not
present. Chase concedes this Court has already held that, under circumstances
identical to his own, he may be convicted under § 2422(b). See United States v.
Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004) (holding a defendant may be
convicted under § 2422(b) for attempting to entice or induce a minor to engage in
unlawful sexual conduct where “a defendant believed he was communicating with
a minor, but was actually communicating with an undercover government agent”).
Under the prior panel precedent rule, “[w]e may disregard the holding of a prior
opinion only where that holding is overruled by the Court sitting en banc or by the
Supreme Court.” United States v. Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009)
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(quotations omitted). Chase’s contentions directly contradict our binding
precedent, and his argument is without merit.
II.
Chase next asserts the district court erroneously admitted prior act evidence
under Federal Rule of Evidence 404(b). We review evidentiary rulings, including
the admission of evidence under Rule 404(b), for abuse of discretion. United States
v. Gari, 572 F.3d 1352, 1361 (11th Cir. 2009). Evidence of a prior bad act may not
be admitted as proof of bad character. Fed. R. Evid. 404(b). However, it may be
admitted “as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” Id.Rule 404(b) evidence is subject to a three-part test for admissibility: (1) the
evidence must be relevant to an issue other than the defendant’s character; (2) there
must be sufficient proof that a jury could find by a preponderance of the evidence
the defendant committed the act; and (3) the probative value must not be
substantially outweighed by its undue prejudice, as per Federal Rule of Evidence
403. United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007).
“To establish relevance under the first prong where testimony is offered as
proof of intent, it must be determined that the extrinsic offense requires the same
intent as the charged offense.” United States v. Dickerson, 248 F.3d 1036, 1047
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(11th Cir. 2001) (quotations omitted). The “same intent” requirement will be
satisfied if the prior act and the charged crime “involve the same mental state.” Id.However, evidence of a prior bad act involving the same subject matter will not
necessarily translate to same intent. See United States v. Marshall, 173 F.3d 1312,
1317 (11th Cir. 1999) (holding a prior arrest for being present in a house where
drug production took place, without any other evidence linking the defendants to
that drug production, was inadmissible to show intent to distribute in defendants’
pending possession and conspiracy charges). Additionally, even substantially
similar conduct may not necessarily be indicative of the same intent. See United
States v. Dothard, 666 F.2d 498, 503 (11th Cir. 1982) (holding because it was
unclear what defendant’s intent was at the time he made a prior misstatement while
procuring a driver’s license, the prior misstatement was insufficient to show the
defendant had an intent to deceive when making the misstatements for which he
was charged).
Regarding the second prong, there must be sufficient evidence for a jury to
find the defendant committed the extrinsic act the Government alleges, but the act
itself need not be criminal. See United States v. Beechum, 582 F.2d 898, 903 n.1
(5th Cir. 1978)1 (“Our analysis applies whenever the extrinsic activity reflects
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
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adversely on the character of the defendant, regardless whether that activity might
give rise to criminal liability.”).
With regard to the third prong, “whether the probative value of Rule 404(b)
evidence outweighs its prejudicial effect depends upon the circumstances of the
extrinsic offense.” Edouard, 485 F.3d at 1345 (quotations omitted). Similarity
between the prior bad act and the charged conduct will make the other offense
highly probative of the defendant’s intent in the charged offense. United States v.
Ramirez, 426 F.3d 1344, 1354 (11th Cir. 2005). Moreover, the risk of undue
prejudice can be reduced by an appropriate limiting instruction. Id.The Government introduced three pieces of evidence, all obtained from
Chase’s computer: (1) images depicting young girls in sexually provocative poses;
(2) titles of video files that suggested that they may contain child pornography; and
(3) a transcript of a chat in which Chase described his molestation of a child. The
evidence was admitted, in large part, as proof Chase possessed the requisite
specific intent to entice a minor into engaging in unlawful sexual acts.
With regard to the images and the chat excerpt, both tend to show, as the
district court pointed out, “an interest in sex with young girls.” Chase’s reliance on
Marshall, 173 F.3d at 1317, and Dothard, 666 F.2d at 503, is misplaced because
to close of business on September 30, 1981.
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they both involve instances where the defendant’s intent while committing the
prior acts is unclear. By contrast, the intent to entice a young girl into performing
unlawful sexual acts necessarily involves a sexual interest in young girls, which is
the intent underlying Chase’s viewing sexually provocative images of young girls
and chatting online about molesting a young girl. Therefore, the images and the
chat excerpt both involve the same mental state as the charged offense, and they
satisfy the first prong of the Rule 404(b) admissibility test. Although neither the
chat transcript nor the images are necessarily indicative of criminal offenses, they
do not need to be. To the extent the Government introduced these as proof of
Chase’s intent to follow through with his enticement of a minor to commit
unlawful sexual acts, the presence of both the images and the chats on Chase’s
computer is sufficient for a jury to conclude, by a preponderance of the evidence,
the images and chats belonged to Chase. Finally, the evidence is probative,
particularly to rebut Chase’s denial that he intended to follow through with the acts
he talked about with “Sarah.” The Government established the images were
accessed during times corresponding with his communications with “Sarah.”
Moreover, the acts Chase described in the chat bore a direct parallel to his plans for
the meeting with Sarah and Katie, and so these pieces of evidence were highly
probative of his intent to entice a minor to commit sexual acts. Additionally, any
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prejudicial value was mitigated by the court’s limiting instruction. Because the
probative value of the images and chat were high, and their prejudicial value was
reduced by the court’s limiting instruction, their probative value was not
outweighed by the risk of unfair prejudice. Therefore, the district court did not
abuse its discretion in admitting this evidence.
Assuming arguendo the district court erred in admitting the titles of video
files purportedly containing child pornography, reversal is not warranted. At trial,
Chase conceded he was the one who chatted with “Sarah.” He only challenged his
conviction on the basis he did not intend to actually entice a minor to commit
unlawful sexual acts. The Government presented an abundance of rebuttal
evidence, including transcripts of online chats where Chase explicitly said he
wanted to convert his fantasy into reality; the fact a search of his car contained the
exact items Chase had told “Sarah” he would bring to the encounter; and Chase’s
own unchallenged post-arrest admissions that had he not been caught, he intended
to engage in sexual activity with “Katie” insofar as she and her mother would
permit. This evidence at trial was supplemented by the images and by the chat
excerpt. Therefore, the jury convicted Chase based on “overwhelming evidence of
guilt.” See United States v. Harriston, 329 F.3d 779, 789 (11th Cir. 2003) (“We
have often concluded that an error in admitting evidence of a prior conviction was
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harmless where there is overwhelming evidence of guilt.”). As such, any error the
district court may have committed in admitting evidence of the video file names
was harmless, and does not require reversal. Id.III.
Chase contends the district court incorrectly assessed its authority to grant a
departure under the Guidelines. In doing so, and subsequently declining to grant a
departure, Chase asserts, the district court treated the Guidelines as mandatory,
resulting in a procedurally unreasonable sentence.
We examine a defendant’s sentence for both procedural and substantive
reasonableness under an abuse of discretion standard. United States v. Ellisor, 522
F.3d 1255, 1273 n.25 (11th Cir. 2008). The standard is deferential, taking into
account the totality of the circumstances. Gall v. United States, 128 S. Ct. 586,
591, 597 (2007). The party challenging the sentence carries the burden of
establishing unreasonableness. United States v. Flores, 572 F.3d 1254, 1270 (11th
Cir.), cert. denied, 130 S. Ct. 568 (2009). A sentence is procedurally unreasonable
if the district court fails to calculate or improperly calculates the Guidelines range,
treats the Guidelines as mandatory, fails to consider the § 3553(a) factors, selects a
sentence based on clearly erroneous facts, or fails to explain adequately the chosen
sentence. United States v. Livesay, 525 F.3d 1081, 1091 (11th Cir. 2008).
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“We lack jurisdiction to review a district court’s decision to deny a
downward departure unless the district court incorrectly believed that it lacked
authority to grant the departure.” United States v. Dudley, 463 F.3d 1221, 1228
(11th Cir. 2006). Under U.S.S.G. § 5K2.22, “[i]n sentencing a defendant convicted
of an offense involving a minor victim under . . . chapter 117, of title 18, United
States Code: (1) Age may be a reason to depart downward only if and to the extent
permitted by § 5H1.1.” U.S.S.G. § 5K2.22. Under § 5H1.1, “[a]ge may be a
reason to depart downward in a case in which the defendant is elderly and infirm
and where a form of punishment such as home confinement might be equally
efficient as and less costly than incarceration.” U.S.S.G. § 5H1.1.
The district court found Chase was neither elderly nor infirm, and on this
basis, rejected Chase’s request for a downward departure on the basis of his age.
This is consistent with the text of the Guidelines, which, as applicable to § 2422(b)
convictions, permit downward departures on the basis of age only when the
defendant is “elderly or infirm.” U.S.S.G. §§ 5H1.1 (emphasis added); 5K2.22.
Given the proscriptions in the Guidelines, the district court did not misconstrue its
authority to grant a departure after finding Chase was neither elderly nor infirm.
See Dudley, 463 F.3d at 1228. As such, its refusal to apply a departure was
discretionary, and we our without jurisdiction to review it. See id.9
To the extent Chase otherwise challenges the sentence as procedurally
unreasonable for treating the Guidelines as mandatory, there is no evidence the
district court did so. See Livesay, 525 F.3d at 1091. By contrast, the district court
expressly acknowledged the advisory nature of the Guidelines and its discretion to
consider a variance, and commented it chose not to do so. Therefore, the sentence
is procedurally reasonable. See id.IV.
In summary, binding precedent prevents Chase from succeeding on his
argument that § 2422(b) does not permit conviction when an actual minor is not
present. The images and an online chat excerpt obtained from Chase’s computer
were admissible under Rule 404(b), and to the extent the titles of the video files
were not, this error was harmless and does not mandate reversal. Finally, the
district court correctly assessed its authority to impose a downward departure, and
recognized the advisory nature of the Guidelines when imposing its sentence.
Accordingly, the sentence is reasonable.
AFFIRMED.
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