United States v. Van Velkinburgh , 342 F. App'x 939 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 24, 2009
No. 08-60429
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
DANNY J VAN VELKINBURGH
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:07-CR-126-1
Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
Danny J. Van Velkinburgh was convicted by a jury of violating 18 U.S.C.
§ 2422(b). He was sentenced to 148 months in prison. Van Velkinburgh now
appeals.
Van Velkinburgh first argues that the evidence was insufficient to support
his conviction. When reviewing his challenge to the sufficiency of the evidence,
this court considers the evidence presented in the light most favorable to the
Government to determine whether a rational trier of fact could have found the
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-60429
essential elements of the crime beyond a reasonable doubt. United States v.
Lopez-Moreno, 420 F.3d 420, 437-438 (5th Cir. 2005). In addition, this court
resolves all reasonable inferences and credibility determinations in support of
the verdict, United States v. Resio-Trejo, 45 F.3d 907, 911 (5th Cir. 1995), and
determines whether the jury made a rational decision. See United States v.
Nolasco-Rosas, 286 F.3d 762, 765 (5th Cir. 2002).
Van Velkinburgh was charged with attempting to persuade, induce, entice,
and coerce a person whom he believed to be a minor to engage in criminal sexual
activity in violation of 18 U.S.C. § 2422(b). To prove attempt, the Government
must demonstrate that the defendant (1) acted with the culpability required to
commit the underlying substantive offense and (2) took a substantial step
toward its commission. See United States v. Farner, 251 F.3d 510, 513 (5th Cir.
2001) (addressing attempt to violate § 2422(b)).1 The statute does not require
that the sexual contact occur, but that the defendant sought to persuade the
minor to engage in that contact. See Barlow, 568 F.3d at 219 n.10.
Here, the evidence showed that Van Velkinburgh (1) engaged in sexually
charged instant messaging conversations with Madison; ( 2) told Madison that
he loved her; (3) discussed the possibility of having sex with Madison; (4)
masturbated in front of his webcam for Madison’s viewing; (5) arranged a
meeting with Madison; and (6) drove to the designated meeting spot. That the
jury chose to discredit Van Velkinburgh’s testimony that he believed Madison
to be an adult and that he did not intend to have sex with her is a determination
that this court will not disturb. See United States v. Delgado, 256 F.3d 264, 273-
74 (5th Cir. 2001). Thus, the evidence was sufficient to support his conviction.
1
The statute also requires that the defendant use a means of interstate commerce in
violating the statute. See § 2422(b). Van Velkinburgh does not contest that he used the
Internet to chat with undercover police officers who presented themselves as a 14-year-old
female named “Madison Scruggs.” The Internet and email are facilities or means of interstate
commerce. See United States v. Barlow, 568 F.3d 215, 220 (5th Cir. 2009).
2
No. 08-60429
See Lopez-Moreno, 420 F.3d at 437-38; Farner, 251 F.3d at 513; Barlow, 568 F.3d
at 219.
Van Velkinburgh avers that district court committed reversible error when
it failed to give a curative jury instruction after the prosecutor commented on his
failure to call a particular witness. The district court included such an
instruction in his jury charge at the close of trial. Assuming arguendo that the
prosecutor’s comment was improper, Van Velkinburgh’s argument that the
burden of proof was improperly shifted by the comment is not supported by the
record. The district court instructed the jury that Van Velkinburgh was
presumed by the law to be innocent, that the law did not require that Van
Velkinburgh prove his innocence or produce any evidence, and that the
Government had the burden of proving Van Velkinburgh guilty beyond a
reasonable doubt. Juries are presumed to follow their instructions. See Zafiro
v. United States, 506 U.S. 534, 540 (1993). Nor was the remark so prejudicial
nor the trial so long that the delay in giving the instruction until the conclusion
of the trial rendered it inadequate. See United States v. Peterson, 244 F.3d 385,
394 (5th Cir. 2001). Moreover, given the weight of the evidence against Van
Velkinburgh, Van Velkinburgh has failed to show that the prosecutor’s remark
cast serious doubt on the correctness of the jury’s verdict. See United States v.
Anchondo-Sandoval, 910 F.2d 1234, 1237 (5th Cir. 1990).
Van Velkinburgh’s challenge to the failure of the district court to instruct
the jury on spoliation of evidence is also without merit. The record shows that
the Government did not act in bad faith. See United States v. Wise, 221 F.3d
140, 156 (5th Cir. 2000); United States v. Gibson, 963 F.2d 708, 711 (5th Cir.
1992) . Accordingly, the judgment of the district court is AFFIRMED.
3