U.S. v. Lanzon

Citation639 F.3d 1293
Decision Date04 May 2011
Docket NumberNo. 09–14535.,09–14535.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
PartiesUNITED STATES of America, Plaintiff–Appellee,v.Keith Joseph LANZON, Defendant–Appellant.

OPINION TEXT STARTS HERE

Roy E. Black, Black, Srebnick & Kornspan, G. Richard Strafer, G. Richard Strafer, P.A., Miami, FL, for Lanzon.Phillip DiRosa, Ft. Lauderdale, FL, Anne R. Schultz, Asst. U.S. Atty., Kathleen M. Salyer, Miami, FL, for U.S.Appeal from the United States District Court for the Southern District of Florida.Before CARNES, KRAVITCH and SILER,* Circuit Judges.

SILER, Circuit Judge:

Keith Joseph Lanzon appeals his conviction by a jury for attempting to persuade, entice, or coerce a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). The issues raised concern the sufficiency of the evidence, the failure to suppress evidence, and the spoliation of evidence. For the following reasons, we affirm.

I.

On September 8, 2005, Detective George Clifton, a member of the Miami–Dade Police Department's Sexual Crimes Bureau, signed online using the undercover persona “Tom.” Detective Clifton created an AOL profile for “Tom” that described him as a male living with his girlfriend and his girlfriend's 14–year–old daughter. “Tom” entered an internet chat room entitled “Florida Couples.” Lanzon, under the username “SlingerHD,” was a participant in this chat room. Lanzon and Detective Clifton then communicated by instant message for approximately 30 minutes.

At the beginning of their text conversation, Lanzon asked, she play too?” Detective Clifton replied, “yes.” Lanzon stated that he had “never crossed into that situation yet.” Lanzon asked Detective Clifton to describe the 14–year–old daughter's appearance, and indicated his interest in meeting her. Detective Clifton asked what Lanzon wanted to do with the 14–year–old, and Lanzon responded, [I] love oral,” “hot passionate sex,” and “totally satisfying a female.” Detective Clifton and Lanzon arranged to speak again later.

Later that day, Lanzon contacted Detective Clifton, resulting in an hour and 20 minute text conversation. Lanzon typed that he had “been thinking” about “Tom” and his girlfriend's daughter, and reaffirmed his interest in meeting her. They proceeded to discuss a time to meet. Detective Clifton mentioned that “being that she is 14,” he would either have to “get her out of school or wait for school to let out.” Lanzon responded “days are good, early evenings are good too.” Lanzon assured Detective Clifton he was “serious.” Detective Clifton then told Lanzon that he must use condoms, and that the 14–year–old liked colored condoms. The two discussed what Lanzon wanted the girl to wear and what sexual techniques would “make her happy.” Lanzon said, “you know what we are doing isn[']t right, fun but not right.” Detective Clifton responded, “yes, I know” and told Lanzon, [I] will go my way and you will go yours” with “no hard feeling” if he felt uncomfortable. Lanzon assured him he did not want to back out of the arrangement.

During their third and final conversation, Lanzon again contacted Detective Clifton and asked whether he had spoken with his girlfriend's daughter. Detective Clifton replied, she is okay with everything.” Lanzon said he would prefer to meet them that day around noon, and asked where they could meet. Detective Clifton suggested a bookstore in Aventura, Florida, where they could have a cup of coffee and then “take care of business.” Lanzon said, “sounds perfect,” and asked where they would go after the bookstore. Detective Clifton replied that they would go to a “hotel on the beach” located ten minutes from the bookstore. The two described to each other what they would be wearing, and Lanzon asked what kind of candy the girl liked. Detective Clifton responded, she loves peppermint.” Lanzon asked for directions to the bookstore, and said he would follow Detective Clifton to the hotel.

Detective Clifton saved these online conversations by copying the instant message communications and pasting them into a Microsoft Word document. He then saved the Word document to a floppy disc, where the conversations could be printed in hard copy form as transcripts. Detective Clifton did not save any of the instant message conversations in their original format to his computer's hard drive, but he compared the actual instant message “chat screens” to the word processing document he had created to ensure that they exactly matched and that he had accurately recorded the conversations in their entirety.

On September 9, 2005, Lanzon drove to the designated bookstore and parked his truck near the bookstore. When he entered the bookstore, he approached the two undercover officers posing as “Tom” and the 14–year–old girl. He was promptly arrested. The officers sought his consent to search his truck, but he refused. The officers then used Lanzon's keys to enter and search the truck, seizing multi-colored condoms, mint-flavored lubricant, and a receipt for the purchase of those items. In the official incident report, the officers' actions were characterized as an inventory search.

In July 2007, Lanzon was indicted for a violation of 18 U.S.C. § 2422(b), which provides:

Whoever, using ... 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 ... imprisoned.

When Lanzon requested that the government identify which criminal offense served as the predicate for the § 2422(b) violation, the government obtained an indictment charging him with an offense of § 2422(b) based on Florida Statute § 800.04. Since § 800.04 contains multiple subsections and the government did not specify which applied, the district court dismissed the indictment.

In September 2008, the government filed a superceding indictment charging Lanzon with a violation of § 2422(b) based on an attempted violation of Florida Statute § 800.04(4)(a), which criminalizes engaging in sexual activity with a person under the age of 16 years.

Lanzon moved to suppress the evidence seized from his truck, arguing that the officers violated the criteria established by the Miami–Dade County Code relating to inventory searches. Following an evidentiary hearing, the court determined that the officers had probable cause to conduct the warrantless search of Lanzon's truck pursuant to the automobile exception.

Lanzon also moved to exclude the instant message transcripts, arguing that Detective Clifton deliberately destroyed the original instant message conversations. In the alternative, Lanzon requested a jury instruction on spoliation of evidence. At the evidentiary hearing, Lanzon called a forensic expert who examined Detective Clifton's computer. The expert testified that he recovered only a remnant of the Word document containing the pasted versions of the original conversations. The expert explained that, because Detective Clifton did not save the document directly to his computer's hard drive, there was no metadata for the document. Without metadata, it could not be determined whether Detective Clifton altered the original instant message conversations. Detective Clifton testified that he preserved the conversation in the standard method he learned at the police department. He chose to save the transcripts on floppy disc, rather than the hard drive, to conserve computer memory. The district court denied Lanzon's motion to exclude and reserved a ruling on the spoliation instruction.

Lanzon was tried and convicted before a jury in 2009. At the close of the evidence, he moved for a judgment of acquittal. He argued that he was indicted under the wrong subsection of § 800.04, which punished completed sex crimes rather than solicitation to commit sex crimes. He further argued that the government had not proved he “could have been charged” by state prosecutors. The court reserved ruling on the motion to allow the jury to decide.

Prior to closing arguments, Lanzon filed a request for jury instructions on spoliation. First, he asked the court to instruct the jury that, under 18 U.S.C. §§ 1512 and 1519, it was a crime for Detective Clifton to destroy or alter evidence. Second, he requested an instruction on spoliation, which would have permitted the jury to draw an adverse inference from Detective Clifton's actions. The district court refused these instructions because Lanzon failed to present evidence of bad faith on the part of Detective Clifton.

Lanzon filed a motion for a new trial, arguing that the district court committed reversible error in rejecting his proposed jury instructions. The court denied the motion, reiterating that Lanzon had failed to present any evidence of bad faith by Detective Clifton. Lanzon also filed a renewed motion for judgment of acquittal, restating his argument that he could not have been charged in Florida under § 800.04(4)(a). He further contended that, even if Florida law recognized the crime of “attempting” to violate § 800.04(4)(a), his conduct did not constitute an attempt because his actions did not reach far enough in accomplishing the attempted crime. Finally, he argued that the indictment failed to state an offense under Florida law because Florida law did not recognize the “double inchoate” crime of “attempt[ing] to persuade, induce, entice, or coerce.” The district court denied the motion, explaining that “due to the manner in which Congress phrased 18 U.S.C. § 2422(b).... he was properly convicted under § 2422(b) due to the fact that he attempted to persuade, induce, entice, or coerce the minor to engage in sexual activity.”

The district court sentenced Lanzon to 60 months imprisonment and a lifetime of supervised release.

II.
A.

Lanzon first challenges the sufficiency of...

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