U.S. v. Barlow, No. 08-60556.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtWiener
Citation568 F.3d 215
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Charles R. BARLOW, Defendant-Appellant.
Docket NumberNo. 08-60556.
Decision Date06 May 2009
568 F.3d 215
UNITED STATES of America, Plaintiff-Appellee,
v.
Charles R. BARLOW, Defendant-Appellant.
No. 08-60556.
United States Court of Appeals, Fifth Circuit.
May 6, 2009.

[568 F.3d 217]

Gaines H. Cleveland, Asst. U.S. Atty. (argued), Gulfport, MS, for U.S.

John William Weber, III, Fed. Pub. Def., Gulfport, MS, Abby W. Brumley (argued), Fed. Pub. Def., Jackson, MS, for Barlow.

Appeal from the United States District Court for the Southern District of Mississippi.

Before WIENER, DENNIS, and CLEMENT, Circuit Judges.

WIENER, Circuit Judge:


A jury convicted defendant-appellant Charles Barlow ("Barlow") of (1) attempting to persuade or entice a person he believed to be a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b), and (2) sending obscene material to a person he believed to be younger than 16 years old in violation of 18 U.S.C. § 1470. Barlow now appeals, bringing three claims of error. We find no error and affirm.

I. FACTS AND PROCEEDINGS

A. Facts

In August 2006, Barlow, then 39 years old and living in Lumberton, Mississippi, spied an online picture and profile of a teenage Mississippi girl named Rebecca and emailed her, introducing himself and asking how old she was. Rebecca responded that she was 14 years old, though in reality, she was a middle-aged, married paralegal from Dixie, Mississippi, named Ginny English ("English").1 English freelanced for law enforcement by posing online as an underage girl to attract potential sex offenders.

Rebecca and Barlow then began an online relationship that continued sporadically

568 F.3d 218

for most of the next year. They chatted mostly via Yahoo! Messenger, an instant messaging service, but also by email. At Barlow's instigation, the conversations became explicit immediately, and over time Barlow emailed Rebecca multiple pornographic pictures, including of his erect penis. He repeatedly asked her to send explicit pictures of herself, occasionally asserting that he was a photographer who could set her on the path to a lucrative modeling career if she would comply. Although the online conversations were usually about sex, they sometimes covered more mundane topics, such as Rebecca's need to register for eighth-grade classes, her mother's monitoring of her computer use, and Barlow's job on an off-shore oil rig.

During their correspondence, Barlow attempted to set up a meeting with Rebecca, but none transpired until the summer of 2007, when they agreed to meet in a state park south of Hattiesburg, Mississippi. Barlow told Rebecca that he would bring his foster sons to the park and that if she would meet him there, they could go for a walk and, then, while the boys ate lunch, Barlow would show her the "inside of his tent." When Rebecca agreed, Barlow asked her not to wear underwear to their rendezvous and sent her more explicit pictures, apparently intended to be instructional.

On the appointed day, Barlow arrived at the park before the 11 a.m. meeting. Near 10:30 a.m., FBI Special Agent Matthew Campbell, who was overseeing the operation, pulled up close to Barlow's parked car in order to read the license plate (obscured by a boat trailer Barlow was pulling) and verify Barlow's identity. Seeing the agent, Barlow gathered his foster sons and left the park. Arrested shortly thereafter, Barlow told agents that he had gone to the park to meet a 15-year-old2 girl named "Becki" but left because he did not want to be there when she arrived. Agents found Barlow's laptop in his car and on it some remnants of the chats he had had with Rebecca.

B. Proceedings

Barlow was charged with (1) attempting to violate 18 U.S.C. § 2422(b) by attempting to knowingly persuade, induce, entice or coerce a person he believed to be younger than 18 years old to engage in sexual activity that would be illegal under Mississippi law,3 and (2) violating 18 U.S.C. § 1470 by using a means of interstate commerce, viz., the Internet, to knowingly send obscene material to a person he believed to be younger than 16 years old. Barlow mounted no defense and did not take the stand during the two-day trial. The jury convicted him on both counts; he was sentenced to 188 months in prison.

Barlow appeals, asserting that (1) there was insufficient evidence that he took a substantial step toward enticing or persuading a minor to engage in sexual activity, (2) the government failed to lay a proper foundation for the Yahoo! chat log prior to its admission into evidence, and (3) the government failed to prove that his acts had an interstate nexus.

II. STANDARD OF REVIEW

Barlow styles his first claim, insufficiency of the evidence, as an appeal from the denial of his motion at trial under

568 F.3d 219

Federal Rule of Criminal Procedure 29. We review the denial of a Rule 29 motion de novo.4 In reviewing the sufficiency of the evidence underlying a Rule 29 denial, we look to "whether a rational jury could have found the defendant guilty beyond a reasonable doubt."5

At trial, Barlow objected to neither the authentication of the chat log nor the alleged failure to establish an interstate nexus, as a result, we review his second and third claims for plain error.6 To show plain error, an appellant must demonstrate that the error was "clear or obvious" and that it "affected [his] substantial rights."7 Even if he meets this tough standard, we will not reverse unless "the error has a serious effect on the fairness, integrity, or public reputation of judicial proceedings."8

III. DISCUSSION

A. Sufficiency of the Evidence

To prove attempt, the government must demonstrate that the defendant (1) acted with the culpability required to commit the underlying substantive offense,...

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88 practice notes
  • United States v. Broussard, No. 11–30274.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 1, 2012
    ...required to commit the underlying substantive offense, and (2) took a substantial step toward its commission.” United States v. Barlow, 568 F.3d 215, 219 (5th Cir.2009). Thus, the Government was required to demonstrate that Broussard intended to persuade, induce, entice, or coerce a person ......
  • Club Retro, L.L.C. v. Hilton, No. 08-30512.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 6, 2009
    ...burdens of suit for which they are entitled qualified immunity will be vindicated without further action from any court. If and only if 568 F.3d 215 plaintiffs move to amend their complaint or file a new complaint, and the district court permits them to proceed over defendants' continuing a......
  • Edington v. United States, Civ. No. 2:14-cv-2718
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • May 19, 2016
    ..."In 2009, it is beyond debate that the Internet and email arePage 12 facilities or means of interstate commerce." United States v. Barlow, 568 F.3d 215, 220 (5th Cir. 2009).This court considers as-applied challenges to federal child pornography statutes with the federal jurisdiction test em......
  • United States v. Engle, No. 10–4850.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • February 29, 2012
    ...that the sexual contact occur, but that the defendant sought to persuade the minor to engage in that conduct.” United States v. Barlow, 568 F.3d 215, 219 n. 10 (5th Cir.2009). To obtain a conviction for sexual exploitation of a minor (enticement) under § 2251(a), the government must prove t......
  • Request a trial to view additional results
87 cases
  • United States v. Broussard, No. 11–30274.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 1, 2012
    ...required to commit the underlying substantive offense, and (2) took a substantial step toward its commission.” United States v. Barlow, 568 F.3d 215, 219 (5th Cir.2009). Thus, the Government was required to demonstrate that Broussard intended to persuade, induce, entice, or coerce a person ......
  • Club Retro, L.L.C. v. Hilton, No. 08-30512.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 6, 2009
    ...burdens of suit for which they are entitled qualified immunity will be vindicated without further action from any court. If and only if 568 F.3d 215 plaintiffs move to amend their complaint or file a new complaint, and the district court permits them to proceed over defendants' continuing a......
  • Edington v. United States, Civ. No. 2:14-cv-2718
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • May 19, 2016
    ..."In 2009, it is beyond debate that the Internet and email arePage 12 facilities or means of interstate commerce." United States v. Barlow, 568 F.3d 215, 220 (5th Cir. 2009).This court considers as-applied challenges to federal child pornography statutes with the federal jurisdiction test em......
  • United States v. Engle, No. 10–4850.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • February 29, 2012
    ...that the sexual contact occur, but that the defendant sought to persuade the minor to engage in that conduct.” United States v. Barlow, 568 F.3d 215, 219 n. 10 (5th Cir.2009). To obtain a conviction for sexual exploitation of a minor (enticement) under § 2251(a), the government must prove t......
  • Request a trial to view additional results
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