United States v. Daniel Nickless

Case: 14-50470 Document: 00513003969 Page: 1 Date Filed: 04/14/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-50470 FILED
Summary Calendar April 14, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
DANIEL NICKLESS,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:13-CR-301
Before SMITH, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM: *
Daniel Nickless was convicted by a jury of using a facility of interstate
commerce to knowingly attempt to persuade, induce, entice, or coerce an
individual, under the age of 18, to engage in illegal sexual activity in Texas, in
violation of 18 U.S.C. § 2422(b). He was sentenced to, inter alia, 120 months’
imprisonment. His three issues on appeal fail.
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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No. 14-50470
In challenging the sufficiency of the evidence supporting his conviction,
Nickless claims the Government presented no evidence that he enticed or
induced the purported juvenile (a Government agent) into engaging in sexual
activity. According to Nickless, the Government did the enticing by placing a
personal advertisement on Craigslist, encouraging an earlier meeting than
Nickless had proposed, and suggesting he bring condoms to the encounter. In
addition, regarding one of the elements for a conviction under § 2422(b),
Nickless maintains there was no evidence that he could have been convicted of
an offense under state (Texas) law.
For, as in this instance, a properly preserved sufficiency-of-the-evidence
challenge, the “evidence, whether circumstantial or direct, [is viewed] in the
light most favorable to the Government with all reasonable inferences to be
made in support of the jury’s verdict”. United States v. Moser, 123 F.3d 813,
819 (5th Cir. 1997) (citation omitted). After reviewing the testimony regarding
the emails, photographs, and text messages sent between Nickless and a
Government agent portraying himself as a 16-year-old female, a reasonable
juror could have found that Nickless attempted to entice an underage person
into illegal sexual activity, in violation of § 2422(b). See, e.g., United States v.
Lundy, 676 F.3d 444, 449–50 (5th Cir. 2012); United States v. Farner, 251 F.3d
510, 512–13 (5th Cir. 2001).
Nickless next claims the district court erred by failing to instruct the jury
on the lesser-included offense of transferring obscene material to a minor, 18
U.S.C. § 1470. Because Nickless never requested such an instruction in district
court, his claim is reviewed only for plain error. E.g., United States v.
Hernandez-Martinez, 485 F.3d 270, 272–73 (5th Cir. 2007); United States v.
Mays, 466 F.3d 335, 342 (5th Cir. 2006) (citation omitted). Under that
standard, he must show a forfeited plain (clear or obvious) error that affected
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his substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If
he does so, we have the discretion to correct the error, but should do so only if
it seriously affects the fairness, integrity, or public reputation of the
proceedings. Id.A conviction under § 1470 requires proof of elements that are not
required for a conviction under § 2422(b). Compare United States v. Rounds,
749 F.3d 326, 333 (5th Cir. 2014) (§ 2422(b) elements) with United States v.
Rudzavice, 586 F.3d 310, 313 (5th Cir. 2009) (§ 1470 elements). Nickless fails
to show clear or obvious error arising from the district court’s not instructing
the jury as to this statute. E.g., United States v. Avants, 367 F.3d 433, 450 (5th
Cir. 2004).
Last, Nickless contends the court abused its discretion in denying his
motion to set aside the jury verdict and for a new trial in the light of some
jurors allegedly having been confused about their ability to persist in a not-
guilty vote. Along that line, Nickless claims the district court erred in not
allowing one of the allegedly confused jurors to testify in support of the motion.
A juror may not testify or present affidavit evidence of events occurring during
deliberations or the juror’s mental processes, although a juror may testify
about the introduction of extraneous prejudicial information or about an
outside influence that was improperly brought to bear on a juror. Fed. R. Evid.
606(b)(1), (2)(A)–(B). Confusion over the jury instructions does not constitute
such an external influence. United States v. Jones, 132 F.3d 232, 245–46 (5th
Cir. 1998) (citation omitted). Nickless has, therefore, not established that the
district court abused its discretion in denying his post-verdict motion.
AFFIRMED.
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