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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-10050
Non-Argument Calendar
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D.C. Docket No. 5:12-cr-00025-MW-CJK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRENNON KYLE HOLLEY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(June 30, 2020)
Before ROSENBAUM, JILL PRYOR, and NEWSOM, Circuit Judges.
PER CURIAM:
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After a jury trial, Brennon Holley was convicted of attempting to persuade,
induce, entice, or coerce a minor to engage in unlawful sexual activity, in violation
of 18 U.S.C. § 2422(b). The trial evidence showed that Holley, after engaging in
sexually explicit conversations over the Internet with a member of law enforcement
posing as a 13-year-old girl named “Rhea,” arranged and traveled to meet the
fictitious minor for the purpose of engaging in sexual activity. On appeal, Holley
challenges the district court’s jury instructions regarding the definitions of
“substantial step” and “induce.” After careful review, we affirm.
I.
We begin with the district court’s definition of “substantial step.” Holley was
convicted of an attempt offense under 18 U.S.C. § 2422(b), which provides as
follows:
Whoever, using the mail or any facility or means of interstate or foreign
commerce, . . . knowingly persuades, induces, entices, or coerces any
individual who has not attained the age of 18 years, to engage in
prostitution or any sexual activity for which any person can be charged
with a criminal offense, or attempts to do so, shall be fined under this
title and imprisoned not less than 10 years or for life.
“To prove that a defendant violated § 2422(b) by attempting to induce a minor
to engage in sexual activity, the government must show that the defendant (1) had
the specific intent to induce a minor to engage in sexual activity, and (2) took a
substantial step toward the commission of that offense.” United States v. Gillis,
938
F.3d 1181, 1190 (11th Cir. 2019). As to the substantial-step prong, the government
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must demonstrate that “the defendant took a substantial step toward causing assent,
not toward causing actual sexual contact.” United States v. Lee,
603 F.3d 904, 914
(11th Cir. 2010) (“The statute criminalizes an intentional attempt to achieve a mental
state—a minor’s assent.” (quotation marks omitted)).
In preparation for trial, the parties submitted proposed jury instructions.
Holley requested, in relevant part, the following instruction regarding “substantial
step”:
It is not necessary for the Government to prove that the individual was
actually persuaded, induced, enticed, or coerced to engage in sexual
activity; but it is necessary for the Government to prove that the
Defendant intended to engage in some form of unlawful sexual activity
with the individual and knowingly took some action that was a
substantial step toward bringing about or engaging in that sexual
activity.
A “substantial step” is an important action leading up to committing an
offense—not just an inconsequential act. It must be more than simply
preparing. It must be an act that would normally result in committing
the offense. Thus, a substantial step to persuade, induce, entice, or
coerce a minor must be confined to the interstate communications
between the defendant and the individual. Travel or other
activities not related to communications utilizing facilities of
interstate commerce cannot be a substantial step.
The district court gave the jury the non-bolded portion of Holley’s requested
instruction, with one minor and irrelevant variation in phrasing, but omitted the
bolded portion.
On appeal, Holley challenges the district court’s “substantial step” instruction
on two grounds. First, he contends that, by instructing the jury that the substantial
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step must have been “toward bringing about or engaging in that [unlawful] sexual
activity” (the italicized portion of the instruction above), the court misled the jury
into believing that “traveling to meet the fictitious minor can constitute a substantial
step toward an attempted violation of § 2422(b).” In Holley’s view, travel is not a
substantial step under § 2422(b) because the substantive crime is “the persuasion,
inducement, enticement, or coercion of the minor rather than the sex act itself,”
United States v. Murrell,
368 F.3d 1283, 1286 (11th Cir. 2004), and travel is not a
substantial step toward causing assent.
Second, relying on these same arguments, Holley contends that the district
court abused its discretion by refusing to give the bolded portion of his requested
instruction. He asserts that the court’s refusal to give his requested instruction
prejudiced his defense and permitted the jury to return a “conviction for conduct
falling outside the ambit of the statute.” We address each argument in turn.
A.
We ordinarily review de novo the legal correctness of a jury instruction,
though we defer to the district court’s choice of phrasing. United States v. Isnadin,
742 F.3d 1278, 1296 (11th Cir. 2014). To reverse a conviction based on a challenge
to a jury instruction, we must be “left with a substantial and ineradicable doubt as to
whether the jury was properly guided in its deliberations.” United States v. Gibson,
708 F.3d 1256, 1275 (11th Cir. 2013) (quotation marks omitted).
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But appellate review is not available, even for plain error, “when a party
induces or invites the district court into making an error.” United States v. Stone,
139 F.3d 822, 838 (11th Cir. 1998). A defendant can invite error in jury instructions
“by submitting an incorrect jury instruction to the district judge which is then given
to the jury.” Id.; see United States v. Frank,
599 F.3d 1221, 1240 (11th Cir. 2010)
(“Frank invited error when he not only agreed with the supplemental instructions
and special verdict form, but requested them.”).
Here, Holley invited any error with regard to the district court’s instruction to
the jury that “it is necessary for the [g]overnment to prove that the Defendant
intended to engage in some form of unlawful sexual activity with the individual and
knowingly took some action that was a substantial step toward bringing about or
engaging in that sexual activity.” Holley claims that the instruction was given “over
objection,” but he fails to identify where in the record he objected to this specific
instruction, and our own review of the record confirms that this language was
included in his proposed jury instructions. See Doc. 164 at 2. Because Holley
submitted this instruction, he invited any error and cannot now complain that the
district court erred in giving it to the jury. See
Stone, 139 F.3d at 838.
B.
We review the refusal to give a requested jury instruction for an abuse of
discretion. United States v. Rutgerson,
822 F.3d 1223, 1236 (11th Cir. 2016). “A
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refusal to incorporate a requested instruction will be reversed only if (1) the
requested instruction was substantively correct, (2) the court’s charge to the jury did
not cover the gist of the instruction, and (3) the failure to give the instruction
substantially impaired the defendant’s ability to present an effective defense.”
Id.
(quotation marks omitted).
As stated above, in a prosecution for attempt under § 2422(b), the government
must prove that “the defendant took a substantial step toward causing assent.”
Lee,
603 F.3d at 914; see
Gillis, 938 F.3d at 1190. We consider the totality of the
defendant’s conduct when determining whether he took a substantial step toward a
violation of § 2422(b).
Lee, 603 F.3d at 916. A substantial step occurs when “the
defendant’s objective acts mark his conduct as criminal such that his acts as a whole
strongly corroborate the required culpability.”
Murrell, 368 F.3d at 1288.
Here, the district court properly rejected Holley’s requested instruction, which
excluded “[t]ravel or other activities not related to communications utilizing
facilities of interstate commerce” from the substantial-step analysis, because it was
not substantively correct.1 Holley maintains that travel is not a substantial step under
§ 2422(b) because it has nothing to do with inducing a minor to engage in illegal sex
through facilities of interstate commerce, which, in his view, is all that the statute
1
Despite admitting to the district court that the requested instruction “doesn’t square with
the Eleventh Circuit,” Holley now argues, through different counsel, that it is not inconsistent with
the law in this Circuit or the plain language of the statute.
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criminalizes. But this Court frequently has relied on evidence of travel in concluding
that the totality of the defendant’s conduct constituted a substantial step toward
inducing a minor to engage in unlawful sexual activity. 2 See, e.g.,
Gillis, 938 F.3d
at 1188, 1190 (defendant’s hour-long drive to meet a fictitious minor was evidence
of a substantial step); United States v. Farley,
607 F.3d 1294, 1334 (11th Cir. 2010)
(defendant’s flight to Atlanta to meet a purported mother and child was evidence of
a substantial step); United States v. Yost,
479 F.3d 815, 820 (11th Cir. 2007)
(defendant’s travel to meet a fictitious minor at a mall was evidence of a substantial
step);
Murrell, 368 F.3d at 1288 (defendant’s two-hour journey to meet a fictitious
minor for sex was evidence of a substantial step); United States v. Root,
296 F.3d
1222, 1228 (11th Cir. 2002) (defendant’s five-hour drive across state lines to meet a
fictitious minor was evidence of a substantial step). We have reasoned that travel—
even intrastate travel—is evidence of a substantial step because it corroborates a
defendant’s culpability and demonstrates that his conduct was criminal. See
Yost,
479 F.3d at 820;
Murrell, 368 F.3d at 1288.
Accordingly, Holley’s requested instruction—attempting to exclude travel,
among other actions, from the substantial-step analysis—is not a substantively
2
We reject Holley’s suggestion that our reliance on travel as evidence of a substantial step
is merely dicta. We see nothing to indicate that the prior panels considered travel superfluous to
the holdings in those cases. See United States v. Gillis,
938 F.3d 1181, 1198 (11th Cir. 2019)
(“[D]icta is a statement that neither constitutes the holding of a case, nor arises from a part of the
opinion that is necessary to the holding of the case.” (quotation marks omitted)).
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correct statement of law in this Circuit. The district court therefore did not abuse its
discretion by refusing to give it. See
Rutgerson, 822 F.3d at 1236.
II.
Finally, Holley argues that the district court erred in instructing the jury that
the word “induce,” as used in § 2422(b), means “to stimulate the occurrence of or to
cause.” However, we previously adopted this same definition—“to stimulate the
occurrence of; cause”—in Murrell, rejecting an alternative definition—“to lead or
move by influence or persuasion; to prevail upon”—because it was “essentially
synonymous with the word
‘persuade.’” 368 F.3d at 1287.
Holley suggests Murrell was wrongly decided, but we are bound by that
decision, which has not been overruled by this Court en banc or by the Supreme
Court, under the prior-precedent rule. See United States v. Vega-Castillo,
540 F.3d
1235, 1236 (11th Cir. 2008). Accordingly, the district court properly instructed the
jury, consistent with Murrell, that “induce” means “to stimulate the occurrence of or
to cause.”
For these reasons, we affirm Holley’s conviction.
AFFIRMED.
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