United States v. Castaneda

• Decision Date: 19 May 2021
• Docket Number: No. 19-12623,19-12623
• Citation: 997 F.3d 1318
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Craig Alan CASTANEDA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

997 F.3d 1318

UNITED STATES of America, Plaintiff-Appellee,

v.Craig Alan CASTANEDA, Defendant-Appellant.

No. 19-12623

United States Court of Appeals, Eleventh Circuit.

May 19, 2021

Nicholas Joseph Hartigan, Assistant U.S. Attorney, U.S. Attorney's Office, Lauren Tapson Macon, Jane Elizabeth McBath, Michael Sinan Qin, U.S. Attorney's Office, Atlanta, GA, U.S. Attorney Service - Northern District of Georgia, U.S. Attorney's Office, Atlanta, GA, for Plaintiff-Appellee

Dennis C. O'Brien, Law Office of Dennis C O'Brien, Newnan, GA, U.S. Attorney Service - Northern District of Georgia, U.S. Attorney's Office, Atlanta, GA, for Defendant-Appellant.

Before WILLIAM PRYOR, Chief Judge, LUCK, and ED CARNES, Circuit Judges.

ED CARNES, Circuit Judge:

This is another of those cases where a defendant propositions someone on the internet in an attempt to sexually abuse a child, only to discover too late that the person on the other end of the conversations is a law enforcement agent. See, e.g., United States v. Deason, 965 F.3d 1252, 1256 (11th Cir. 2020).

Craig Castaneda was convicted of attempted enticement of a minor to engage in unlawful sexual activity and traveling across a state line with the intent to engage in sexual activity with a person under the age of 12 years. He was sentenced to 420 months imprisonment. This is his appeal of those convictions and sentence.

I.

Castaneda, who lived just south of San Diego, California, saw a Craigslist ad from someone claiming to live in Atlanta, Georgia. The ad stated that it was posted by a 37-year-old female with a 9-year-old child who was: "Looking for someone with experience with REAL Taboo to be a good teacher! If you know what i'm [sic] talking about reach out. ... [N]o experience, don't bother!!!"

Castaneda reached out. He began communicating with someone going by the name of "Kandi," first by email and then by another messaging application. Castaneda's first two emails to "Kandi" claimed that he was "experienced in what you're looking for," meaning he had experience in "[i]ncest, pedophilia and grooming" and "[e]xperience with my friend's daughter (started at 4), and several younger cousins growing up." He also stated that although he was "currently in California, [he] could definitely make a visit [to Atlanta] for in person instruction." "Kandi" confirmed they were "on the same page," that she had a 9-year-old daughter, and that she was "wanting to learn more and looking for someone with experience like you."

Castaneda responded with a lengthy "first lesson" about how to sexually abuse children; part of that "lesson" was the warning to "[b]e smart about how you engage in this, the wrong move will lose you your daughter and put you on a sex offender list, it'll wreck your life." He reaffirmed that he was "willing to come to Atlanta" and asked for more information about "Kandi's" daughter.

Castaneda soon began planning to fly from California to Georgia to help "Kandi" sexually abuse the 9-year-old girl. As part of his planning, he asked "Kandi" what "activity [the daughter] would love to do," meaning "[s]omething she will like, but not get to do often, like the zoo." Castaneda asked that because he wanted to build trust and develop a good relationship with the little girl and use it, in his words, "to break the ice." He also instructed "Kandi" that her "job with [the daughter] at this stage is to build [Castaneda] up" and to let her daughter know that his "visit and everything going well is VERY important to you personally and you need her to be on her best behavior and do her best to contribute to my visit being a success." Another part of Castaneda's planning was telling "Kandi" that on the first visit "there will likely be no penetration" of the child's vagina because that might hurt the child and that is "just one of those things they need to be worked into." Soon after that, Castaneda bought a plane ticket to Atlanta.

As it turned out, of course, "Kandi" was not the mother of a 9-year-old girl, nor was there one. Instead, Castaneda was communicating with an undercover law enforcement agent who had posted the Craigslist ad and was posing as "Kandi."

Castaneda did not know that when he boarded a plane for Atlanta. In fact, on the day his flight was scheduled he sent "Kandi" a message instructing her about some items he wanted her to bring to their meeting, which was to take place in the downtown area near a hotel where Castaneda had booked a room for two nights. The items he wanted her to bring were "swim clothes and maybe a small pocket rocket," which is a sexual vibrator device, an additional sexual vibrator device that Castaneda requested be "a smaller, smooth, non-phallic vibe," and sexual lubrication. He also instructed "Kandi" to wear her "Sunday best sort" of clothes. When Castaneda got off the plane in Atlanta, he was arrested.

Castaneda was indicted for one count of attempting to entice a minor to engage in unlawful sexual activity, in violation of 18 U.S.C. § 2422(b), and one count of crossing a state line with the intent to engage in sexual activity with a person under the age of 12 years, in violation of 18 U.S.C. § 2241(c). A jury found him guilty on both counts. The district court sentenced Castaneda to 420 months imprisonment.

II.

Castaneda contends that his indictment should have been dismissed because the government's conduct in investigating him was so outrageous that it violated his Fifth Amendment due process rights.

The theory behind the outrageous government conduct defense is that if a defendant can show that the "law enforcement[ ] techniques [used] violate ‘fundamental fairness, [and are] shocking to the universal sense of justice, mandated by the Due Process Clause of the Fifth Amendment,’ " United States v. Cannon, 987 F.3d 924, 941 (11th Cir. 2021) (quoting United States v. Russell, 411 U.S. 423, 432, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973) ), that ought to "bar the government from invoking judicial processes to obtain a conviction," Russell, 411 U.S. at 431–32, 93 S.Ct. 1637.

Outrageous conduct is only a potential defense in this circuit because neither the Supreme Court nor this Court has ever found it to actually apply and barred the prosecution of any case based on it. See Cannon, 987 F.3d at 941–42 (noting that "this defense has never succeeded here or in the Supreme Court" and that some of our cases "state that because this Court has never actually reversed a conviction based on outrageous government conduct, any discussion of it is merely dicta"); United States v. Jayyousi, 657 F.3d 1085, 1111 (11th Cir. 2011) ("We have never applied the outrageous government conduct defense and have discussed it only in dicta."); United States v. Sanchez, 138 F.3d 1410, 1413 (11th Cir. 1998) ("While the Supreme Court and this Court have recognized the possibility that government involvement in a criminal scheme might be so pervasive that it would be a constitutional violation, that standard has not yet been met in any case either before the Supreme Court or this Court."). Like the fabled creature Sasquatch, this defense has entered the common consciousness and is mentioned from time to time. Some claim to have caught fleeting glimpses of it in the remote backwoods of the law, but its actual existence has never been confirmed.

The invariable way that consideration of an outrageous government conduct defense has ended in the Supreme Court and in this Court is illustrated by what the Supreme Court stated in its Russell decision: "While we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction, the instant case is distinctly not of that breed." Russell, 411 U.S. at 431–32, 93 S.Ct. 1637 (citation omitted). And neither is this case.

Castaneda contends that the government acted outrageously by exposing him to child pornography in the course of its sting operation. Here's how Castaneda says that he was "exposed" to child pornography. At one point during the government's undercover messaging with him, Castaneda requested a picture of "Kandi," the fictional mother of the fictional child he was planning to actually sexually abuse if he could. The agent communicating with Castaneda responded to his request for a picture of the mother by providing him with a link to a public "MeetMe.com" online profile for Katrina Cox. Cox was a previously convicted child pornographer cooperating with the government by allowing agents to use her online identity and some of her accounts.

When he received the link to the profile for Cox, Castaneda decided not just to look at her picture or communicate with her, but to go further. He decided to use the information from Cox's MeetMe.com profile to see what else he could find. What he managed to find was a different website that listed an email address similar to the one he had for "Kandi" as well as the password to that other email address. Castaneda then used that information to log into the email account using Cox's password, and on that website he found child pornography. Castaneda made that discovery while he was at work. He didn't discard that child pornography but instead downloaded it to his personal computer when he got home.

Castaneda moved to dismiss the indictment on outrageous government conduct grounds. At a hearing on the motion, the government agents involved in the undercover operation testified that: they had never come across, or heard of, the email account that Castaneda had hacked into; they had never suggested to Castaneda he should hack into that email account or any other account; they had never provided him with the password to that or any other email account, or with permission to go into anyone's email account; and they had not suggested to Castaneda where he might find child pornography.

The magistrate judge issued a report that expressly found the...