United States v. Richard Confer

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13890
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD CONFER,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 4:19-cr-00041-MW-MAF-1
____________________
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2 Opinion of the Court 20-13890
Before JORDAN, JILL PRYOR, and BRANCH, Circuit Judges.
PER CURIAM:
Richard Confer appeals his convictions for attempted pro-
duction of child pornography and attempted enticement of a minor
to engage in sexual activity. After careful review, we affirm.
I. BACKGROUND
The mother of a 14-year-old child (“C.V.”) reported to the
Leon County Sheriff’s Department that inappropriate messages
were being exchanged between an adult family member, Confer,
and C.V. Leon County Sheriff’s Department Special Agent Charles
Travis Knight took possession of C.V.’s phone and, posing as C.V.,
began exchanging messages with Confer over the smartphone ap-
plications Snapchat and Instagram.
Based on those exchanged messages, a grand jury indicted
Confer on charges that he attempted to produce child pornogra-
phy, in violation of 18 U.S.C. § 2251(a), (e) (Count One), attempted
to entice a minor to engage in sexual activity, in violation of 18
U.S.C. § 2422(b) (Count Two), and attempted to transfer obscene
material to a person under the age of 16, in violation of 18 U.S.C.
§ 1740 (Count Three). 1
1 Confer does not appeal his Count Three conviction; thus, we do not discuss
it further.
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20-13890 Opinion of the Court 3
Confer moved to suppress text messages and photographs
exchanged over Snapchat, asserting that Knight had lost or de-
stroyed some messages in violation of his due process rights. A hall-
mark of Snapchat is that photographs and text messages users send
one another are automatically deleted after they are viewed. See
United States v. Kushmaul, 984 F.3d 1359, 1361 n.3 (11th Cir. 2021).
Confer noted that it was undisputed that although Knight took
photos of most of the exchanges with a digital camera, he did not
photograph them all; thus, he lost or destroyed some evidence. 2
Confer also asserted that Knight did not send a law enforcement
preservation request to Snapchat which, presumably, would have
resulted in Snapchat turning over all the exchanged messages. Con-
fer argued that Knight’s failure to send a preservation request evi-
denced bad faith. Thus, he argued, the messages should be sup-
pressed.
The government responded that Knight did make a preser-
vation request with Snapchat, but given the nature of the platform,
including that the company does not preserve deleted messages on
its servers, the request was unlikely to bear fruit. Indeed, “[n]either
the full chat content between C.V. and the Defendant nor the full
chat content between Det. Knight and the Defendant was
2It is undisputed that Knight did not take screenshots of the exchanges—pre-
sumably a more efficient process than using a separate camera to photograph
messages—because Snapchat alerts a message’s sender if the recipient takes a
screenshot of sent content.
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4 Opinion of the Court 20-13890
preserved” by Snapchat. Doc. 42 at 5. 3 In anticipation of that result,
Knight took photos of the disappearing messages as quickly as he
could, all in good faith. The government asserted that the alleged
missing messages constituted an extremely small percentage of the
total number of exchanges. Plus, the government argued, Confer
had failed to show how the missing evidence was likely to signifi-
cantly contribute to his defense.
The district court held a hearing on Confer’s motion at
which Knight testified. Knight testified that after C.V.’s mother
contacted law enforcement about Confer’s sexual text messages to
C.V., Knight seized control of C.V.’s phone and changed her social
media passwords so that only he could access them. From there,
Knight assumed C.V.’s identity without Confer’s knowledge, using
his own personal phone instead of C.V.’s.
Thereafter, Confer sent a message through Instagram to
C.V.’s account. The next day, Confer sent another message, and
about four days later, Knight, posing as C.V., responded. At Con-
fer’s suggestion, the two switched to Snapchat. Once communica-
tion switched to Snapchat, and because of Snapchat’s message de-
letion feature, to document the messages Knight had to take digital
photos of the phone he was using to communicate with Confer.
He created a summary chart containing the contents of all the mes-
sages and updated it on an ongoing basis.
3 “Doc.” numbers are the district court’s docket entries.
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20-13890 Opinion of the Court 5
All told, Knight captured “roughly 6[00] or 700” images doc-
umenting the approximately 1500 to 1600 chats with Confer during
one month. Doc. 93 at 62. Many of the images documented a string
of messages. Knight acknowledged that, due to the fast pace of the
messaging and the fact that he needed to photograph messages be-
fore they disappeared, he failed to capture a few messages. But he
testified that he had “independent recollection” of the content of
the conversations. Id. at 66. And, for most of the disputed mes-
sages, Knight explained how the messages were preserved in his
photos, even though some were partially obscured or appeared in
a previous or successive photo he took. Knight testified that he
never purposely excluded messages from his documentation of
communication with Confer.
Knight testified that at the time of the investigation, the
“consensus among[] a majority of law enforcement” was that Snap-
chat did not save any messages or photos users sent through the
application. Id. at 33. Conversely, Instagram “maintains a database”
with material that users send back and forth. Id. at 35. In contrast
to law enforcement’s consensus as to Snapchat, the consensus was
that Instagram (owned by Facebook) would produce messages in
response to a subpoena or warrant.
Knight further testified that he made preservation requests
to both Snapchat and Instagram. He clarified that a preservation
request does not guarantee preservation because companies have
the right to refuse the request. In fact, despite the preservation re-
quest and a search warrant served on Snapchat for information
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6 Opinion of the Court 20-13890
relating to C.V.’s account’s communications, Snapchat provided
“only three chats . . . from the communication between C.V. and
[Confer] on C.V.’s account,” and they were all from only one day
in the investigation. Id. at 78.
The defense called John Sawicki, an electronic evidence con-
sultant and forensic computer scientist. Sawicki testified that he
was familiar with the application Snapchat. He testified that Snap-
chat “has the ability to preserve, at least according to them, the . . .
messages themselves, . . . pictures, anything of that nature, if they
received [a] preservation request.” Doc. 94 at 16. But he acknowl-
edged that “there is no guarantee to what Snapchat will provide
related to legal process that’s returned from [a] law enforcement
search warrant.” Id. at 21.
The district court denied the motion to suppress. The court
explained that to prevail on his due process claim based on alleg-
edly lost evidence, Confer was required to show that the evidence
was likely to significantly contribute to his defense and show bad
faith by Knight. See United States v. Revolorio-Ramo, 468 F.3d 771,
774 (11th Cir. 2006). And, the court determined, Confer had shown
neither element. The court found Knight to be credible, including
his concerns about whether Snapchat would preserve anything
even upon receipt of a preservation request. Rather than finding
bad faith, the district court found “good faith” by Knight: he “liter-
ally took hundreds and hundreds of photographs trying to capture
all kinds of information and did not simply try to capture infor-
mation that he was going to rely on or he thought would be helpful
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20-13890 Opinion of the Court 7
to this prosecution.” Id. at 56. Further, the district court found that
“there is no evidence that there was anything lost or destroyed that
would have been helpful to the defense.” Id.
The day after the hearing, the government filed on the
docket a copy of the preservation request Knight sent to Snapchat
at the beginning of the investigation and a confirmation of receipt
of that request from Snapchat.
Confer proceeded to a jury trial. The victim, C.V., testified.
C.V. testified that Confer, her second cousin’s husband, was like a
“father figure” to her, someone she trusted. Doc. 96 at 122–23. She
testified that Confer sent her a direct message over Instagram in
which he told her that she “was dressing sexy” and “looked good,”
communications that made C.V. feel “[r]eally uncomfortable.” Id.
at 131. Confer once asked C.V. to “prove” that she was wearing
thong underwear. Id. at 153. At some point, Confer told C.V. that
he was taking his children to an area near C.V.’s house—the two
lived in separate cities—and that he would have stopped by to see
her but did not because “it would look bad on him, and everyone
would wonder why he stopped by.” Id. at 134.
Eventually, C.V. told her mother about the messages and
her discomfort about them. After a few days of communicating
with Confer under the supervision of her mother—who took pho-
tographs of the Snapchat messages between Confer and her daugh-
ter—C.V. and her mother went to the police.
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8 Opinion of the Court 20-13890
Knight explained how he took over C.V.’s social medica ac-
counts and detailed the messages Confer sent to him over Snapchat
while Knight was posing as C.V. In early exchanges, Confer asked
if C.V. kissed the penis of a boy she claimed to see; told C.V. he did
not know what her “ass” looked like because he had not seen it;
told C.V. to “[p]lay with it” first to know what felt good, which
Knight interpreted to mean masturbation; told C.V. to watch porn
to “[l]earn how it all works,” including “[h]ow to suck a D,” and
how to masturbate. Id. at 192, 198, 200, 205. Knight testified that
Confer sent C.V. a message that told her she could not get pregnant
or lose her virginity if she had anal sex.
Knight testified that Confer later repeatedly asked directly
or suggested that C.V. send him nude images. He specifically asked
her to send a photo of her vagina “with [her] finger in it,” id. at 243,
and a photo “with a hairbrush hanging out of [her] vajayjay” or
vagina, Doc. 98 at 56. He asked C.V. to do a live video over Snap-
chat after C.V. refused to send him a nude photograph. Knight tes-
tified that, without prompting, Confer sent multiple photographs
and at least one video of his testicles and penis.
Knight also testified that Confer asked C.V., “whatcha
gonna do if I pick you up for spring break and pull my D out?” Doc.
97 at 242. He told C.V. he wanted her “naked in person.” Doc. 98
at 58. Knight testified that Confer offered C.V. $100 to “lick [her]
vaj.” Doc. 97 at 290. He repeatedly brought up C.V.’s spring break
and asked C.V. to “[w]ork on [her] mom” to convince her mom to
let her visit him. Id. at 292. When Knight, posing as C.V., said her
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20-13890 Opinion of the Court 9
mom was “not having it,” Confer asked, “If I drove there, how
would that work?” Id. at 303. He told C.V. he would “work out
some way . . . to see [her]” by driving to Tallahassee, where she
lived. Doc. 98 at 25. A few days later, he messaged that “we need
to schedule the day to come see you.” Id. at 66.
Leon County Sheriff’s Office Detective Robert Walker testi-
fied that he extracted data from Confer’s phone indicating that
Confer had searched Google, Wikipedia, and Yahoo! for “girls av-
erage age to lose virginity” and “[c]an you record Snapchat,” as well
as for information about incest and its legality and sending nude
photographs on Snapchat.
At the close of the government’s evidence, Confer moved
for a judgment of acquittal on all counts. The district court denied
the motion.
Confer testified in his own defense. Confer testified that
Knight, posing as C.V., “pursued” him by “increas[ing] the sexual
nature of th[e] conversation.” Doc. 74 at 22. Confer acknowledged
“100 percent” sending C.V. inappropriate messages and did not dis-
pute that he sent any of the messages in the record, including re-
peatedly asking C.V. for nude photographs, sending photographs
of his penis, and offering C.V. $100 to lick her vagina. Id. at 26. But,
he said, he had “no intentions of getting together” in person with
C.V. Id. at 27. Rather, he “invented a story, a thing, that could
never happen” in an attempt to “deflect.” Id. at 27–28. Despite this,
Confer acknowledged trying to convince C.V. to ask her mother if
C.V. could visit Confer.
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10 Opinion of the Court 20-13890
Confer did not renew the motion for judgment of acquittal
at the close of his case. Upon Confer’s request, the district court
instructed the jury on the defense of entrapment. The jury none-
theless found Confer guilty on all counts. The district court sen-
tenced Confer to serve a 180-month term of imprisonment on each
count, all to be served concurrently.
This is Confer’s appeal.
II. STANDARDS OF REVIEW
Confer challenges the district court’s denial of his motion to
suppress. A district court’s ruling on a motion to suppress presents
a mixed question of law and fact. United States v. Zapata, 180 F.3d
1237, 1240 (11th Cir. 1999). Whether there was a due process vio-
lation based on the government’s loss of or failure to preserve evi-
dence also is a mixed question of law and fact. United States v.
Wilchcombe, 838 F.3d 1179, 1191 (11th Cir. 2016). We review the
district court’s factual determinations for clear error and its legal
conclusions de novo. Id. And we construe all facts in the light most
favorable to the prevailing party below. United States v. Bervaldi,
226 F.3d 1256, 1262 (11th Cir. 2000). We are not limited to the evi-
dence introduced at the hearing on the motion to suppress and may
consider any evidence presented after the motion was resolved.
United States v. Villabona-Garnica, 63 F.3d 1051, 1056 (11th Cir.
1995).
Confer also challenges the sufficiency of the evidence to sup-
port his convictions on Counts One and Two. Ordinarily, we
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20-13890 Opinion of the Court 11
review de novo whether sufficient evidence supports a conviction,
viewing the evidence and taking all reasonable inferences in favor
of the jury’s verdict. United States v. Fries, 725 F.3d 1286, 1291
(11th Cir. 2013). When a defendant moves for a judgment of ac-
quittal at the close of the government’s case in chief, his presenta-
tion of a case after the denial of that motion generally operates as a
waiver of any objection to the decision on the motion unless he
renews his motion at the close of all evidence. United States v.
Jones, 32 F.3d 1512, 1516 (11th Cir. 1994). So, when a defendant
fails to renew his motion for judgment of acquittal at the end of all
the evidence, we review the verdict only for a manifest miscarriage
of justice. United States v. House, 684 F.3d 1173, 1196 (11th Cir.
2012).
A manifest miscarriage of justice occurs only when the rec-
ord is devoid of evidence of an essential element of the crime or
when the evidence on a key element is so tenuous that a conviction
would be shocking. Fries, 725 F.3d at 1291. This is a “heavier bur-
den” than the defendant would shoulder had he preserved the chal-
lenge. Id. (internal quotation marks omitted). We must view the
evidence in the light most favorable to the government and accept
all reasonable inferences and credibility determinations that sup-
port the jury’s verdict. United States v. Milkintas, 470 F.3d 1339,
1343 (11th Cir. 2006).
III. DISCUSSION
Confer argues that the district court erred when it denied his
motion to suppress the Snapchat messages he sent to C.V., arguing
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12 Opinion of the Court 20-13890
that Knight failed to capture every message exchanged, resulting in
a due process violation. As to his sufficiency challenge, Confer ar-
gues that the evidence produced by the government at trial was
insufficient to establish that he enticed a minor to engage in sex-
ually explicit conduct for the purpose of producing a visual depic-
tion of such conduct. And he argues that he did not commit a sub-
stantial step towards engaging in sexual activity with a minor be-
cause he never made any definitive plans to meet C.V. in person.
We discuss each of these issues in turn.
A. Motion to suppress
To establish that the loss of evidence constitutes a violation
of due process, the defendant must show that the evidence was
likely to significantly contribute to his defense. Revolorio-Ramo,
468 F.3d at 774. Further, the failure to preserve potentially useful
evidence only violates due process if the defendant can show bad
faith on the part of law enforcement. Id.Confer argues that he can show both that the evidence was
likely to significantly contribute to his defense and that Knight
acted in bad faith. He argues that “the evidence in the record
strongly suggests” that Knight made no preservation request to
Snapchat. Appellant Br. at 43. He also suggests that Knight knew
his failure to send a preservation request “would result in destruc-
tion” of evidence, demonstrating bad faith. Id.Confer has not made the requisite showing. First, Confer
summarily argues that the lost evidence would have contributed to
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20-13890 Opinion of the Court 13
his defense, but he points us to no evidence in support of that ar-
gument. We reject it. Second, Confer has not come close to con-
vincing us that the district court erred in finding that Knight did not
act in bad faith. Knight testified that he sent Snapchat a preserva-
tion request, and the district court found Knight credible. Confer
does not challenge that credibility determination, and we see no
reason to disturb it. Plus, the government entered into the record
a copy of the preservation request and Snapchat’s acknowledge-
ment of receipt of that request. See Villabona-Garnica, 63 F.3d at
1056 (permitting reviewing courts to consider evidence admitted
after the suppression proceedings). Confer has not challenged the
legitimacy of those documents.
Confer’s argument that Knight knew his failure to send a
preservation request would result in destruction of evidence fares
no better. Again, Knight did send such a request. And Knight testi-
fied that the consensus among law enforcement at the time of the
investigation was that Snapchat would not preserve messages on
its servers. Confer produced no evidence to the contrary. So the
evidence shows that even assuming Knight did not send Snapchat
a preservation request, it was not the failure to send a preservation
request that would result in destruction of evidence, but rather
Snapchat’s own policies about what it saved for potential preserva-
tion. Confer has not convinced us that Knight acted in bad faith and
that the district court clearly erred in finding otherwise.
We affirm the district court’s denial of Confer’s motion to
suppress.
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14 Opinion of the Court 20-13890
B. Sufficiency of the evidence
1. Attempt to produce child pornography
Count One charged Confer with attempt to produce child
pornography, in violation of 18 U.S.C. § 2251(a), (e). It is unlawful
under § 2251(a) and (e) to attempt to use means of interstate com-
merce to persuade or coerce a minor to engage in any sexually ex-
plicit conduct for the purpose of producing a visual depiction of
such conduct. 18 U.S.C. § 2251(a), (e). Confer argues that his com-
munications with C.V. were not “for the purpose of” producing a
visual depiction of a minor engaging in explicit conduct. We disa-
gree.
Confer makes three arguments for why the government
failed to satisfy this element, but none holds water. First, he argues
that the “act of merely asking for a picture is not the type of ‘pro-
duction’ contemplated by § 2251(a),” so he was not acting “for the
purpose of” producing child pornography. Appellant Br. at 21–22.
We have explained, however, that the statute’s “prohibition ex-
tends not only to those who solicit minors for sex, but also to those
. . . who ask for nude photos.” United States v. Caniff, 955 F.3d
1183, 1192 (11th Cir. 2020).
Second, Confer suggests that because most of his requests
for photos were in vague terms, the evidence was insufficient to
demonstrate that he sought pornographic images. But Confer
acknowledges sending at least two “requests . . . for sexually
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20-13890 Opinion of the Court 15
explicit pictures.” Appellant Br. at 20 n.7. Those two requests alone
satisfy this element. See Caniff, 955 F.3d at 1192.
Third, Confer argues that “a person who wanted to ‘pro-
duce’ child pornography would not use the Snapchat application”
because images on the platform disappear when they are viewed.
Appellant Br. at 21–22. Even assuming Confer is right that the
transmission of a photo that disappears forever would not satisfy
the statute, the jury reasonably could have determined that Confer
could have preserved any pornographic photos C.V. transmitted
via a screenshot or via taking a photo of the incoming image, as
Knight did with the images Confer sent.
In sum, viewing the evidence in the light most favorable to
the jury’s verdict, the verdict as to Count One does not represent a
manifest miscarriage of justice. We affirm this count.
2. Attempted enticement of a minor
Count Two charged Confer with attempting to entice a mi-
nor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b).
It is unlawful under § 2422(b) to use means of interstate commerce
to persuade or entice an individual under age 18 to engage in sexual
activity. 18 U.S.C. § 2422(b). A person commits an attempt when
he has the specific intent to commit the underlying charged crime
and took actions that constituted a substantial step toward the
commission of the crime. United States v. Lee, 603 F.3d 904, 913–
14 (11th Cir. 2010). Confer argues that he neither intended to in-
duce C.V. to engage in sexual activity nor took a substantial step
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16 Opinion of the Court 20-13890
towards committing the charged offense. Given the standard of re-
view and that Confer testified in his own defense, we are uncon-
vinced.
First, Confer argues on appeal that he never intended to visit
C.V. for the purpose of engaging in sexual activity. He says he
“never . . . attempted to have any contact with C.V.” Appellant Br.
at 25. 4 He testified to the same at trial, claiming he had “no inten-
tions of getting together” with C.V. Doc. 74 at 27. But when a de-
fendant takes the stand and testifies in his own defense, the jury
may disbelieve his testimony, and the defendant’s own statements
may be considered as substantive evidence of his guilt provided
there is evidence to corroborate an inference of guilt. United States
v. Brown, 53 F.3d 312, 314 (11th Cir. 1995). Given multiple mes-
sages to C.V. expressing an intent to meet her in her hometown or
have her travel to his, there was evidence to corroborate an infer-
ence, contrary to his testimony, that Confer did intend to meet
C.V. to engage in sexual activity.
Second, Confer argues that he never made a substantial step
toward committing the offense of enticement. He argues that more
than “explicit sex talk” is required, and that a substantial step
“would only have occurred if [he] actually traveled or made specific
plans to travel.” Appellant Br. at 26–27. Without deciding whether
4 Confer also says he “never asked to have sex with C.V.” Appellant Br. at 25
n.11. Not so. By his own admission, Confer offered C.V. $100 if he could per-
form oral sex on her.
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the evidence would be sufficient to sustain a conviction had Confer
properly preserved his sufficiency challenge, we reject his unpre-
served challenge. Confer engaged in more than just explicit sex
talk. By his own admission, Confer actively encouraged C.V. to
convince her mother to allow her to visit him so that the two could
engage in sexual activity. He also discussed an alternative plan of
coming to visit C.V., telling her he would “work out some way” to
drive to her and that they “need[ed] to schedule the day” for the
visit. Doc. 98 at 25, 66. Considering these communications, we can-
not say that the record is devoid of evidence of a substantial step or
that the evidence is so tenuous that Confer’s conviction is shock-
ing. Fries, 725 F.3d at 1291. We therefore affirm this count.
IV. CONCLUSION
For the foregoing reasons, we affirm Confer’s convictions.
AFFIRMED.