United States v. Deason, No. 17-12218

• Decision Date: 17 July 2020
• Docket Number: No. 17-12218
• Citation: 965 F.3d 1252
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Steven DEASON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

965 F.3d 1252

UNITED STATES of America, Plaintiff-Appellee,

v.Steven DEASON, Defendant-Appellant.

No. 17-12218

United States Court of Appeals, Eleventh Circuit.

July 17, 2020

Lindsay Feinberg, U.S. Attorney Service - Middle District of Georgia, U.S. Attorney's Office, Macon, GA, for Plaintiff - Appellee

Leigh Ann Webster, Strickland Webster, LLC, Atlanta, GA, for Defendant - Appellant

Before BRANCH, TJOFLAT, and ED CARNES, Circuit Judges.

ED CARNES, Circuit Judge:

This is one of the many cases we see in which an adult male pedophile communicates with and propositions an underage female via the internet only to discover to his surprise that she is not underage and often, as in this case, not even female. Surprise is followed by arrest and prosecution, which are usually followed by conviction and appeal, which are usually followed by affirmance. So it is here.

I. FACTUAL BACKGROUND

Steven Deason responded by email to a Craigslist ad by someone who supposedly was a female living on Robins Air Force Base. The ad said that she was "lookin[g] to hang out wit[h] some cool guys." Deason asked "[h]ow old are you and what are you into[?]" She answered that she was 14 years old. He continued to message with her, claiming that he was 30 years old (he was actually 39). She told him her name was Amber and that she lived on base with her parents.

Deason and Amber chatted digitally (mainly on Yahoo Messenger) over a period of about a month, from January 6 to February 4, 2016. Deason quickly introduced sexual topics into their conversations. The focus of many of their conversations was sexual experiences and encounters, proposed sexual acts between the two, and a meeting so that they could engage in those acts. Deason emailed Amber pornographic images on January 12, January 15, January 19, January 22, and January 27, 2016. On February 1, he sent her three links to sexually explicit videos. The first video depicted "an older bald gentleman" and a female engaging in various sexual acts including sexual intercourse. The second video depicted a female engaging in various sex acts with "an older, bald, white male." While it is debatable that Deason's 39 years made him "old" or "older," there is no debate that he was a "bald white male." The third video Deason sent a link to was an instructional video about masturbation for women. It, at least, did not feature an old bald man.

Amber told Deason that her parents would be out of town on February 4, and they agreed to get together at her house on that day to engage in several sexual acts, including oral sex, vaginal sex, analingus, and the like. The morning of February 4 Deason drove past the house he believed to be Amber's on his way to a Burger King to get breakfast for her. An undercover officer involved in the sting operation was there to observe. While Deason was waiting for his order to be prepared, two uniformed military police officers, who had nothing to do with the operation, happened to walk in. Shortly after they did, Deason walked out hurriedly, got into his car, sped away from the base at more than 70 m.p.h. in a 45 m.p.h. zone, and didn't go to Amber's house as he had intended.

Later that day Deason messaged Amber. After asking for her father's name, he told her that the reason he had been saying sexually explicit things and sending pornographic material to her was to help her understand that those things were wrong because she was so young. Deason told Amber that he was "trying to save" her and that he had been: "hoping all the dirty things I said to you would click in your head and at some point you would say no to all of it." When Amber asked him why he would "say all that stuff for so long and do all those things," Deason told her that he had sent her all the sexually explicit messages and the porn hoping she would "tell [him] how gross it was ... omg, an old man and a young girl." Those messages implicitly, but clearly, carried with it the incriminating admission that he had sent sexually explicit material to a girl he knew was underage.

He must have realized his slip up in that regard because he belatedly changed course. After Amber called him a liar who had broken her heart and said that she was through talking to him, he sent a couple of messages asking her if she wanted to find true love. Amber didn't respond. Deason then mentioned "role playing" for the first time, claiming to Amber that he "really thought we was [sic] role playing up until this week ... Then I realized you was [sic] not." He told Amber not to post on Craigslist anymore because it "is dangerous" and people would "think you are role playing." He was, of course, half right: "Amber" actually was role playing.

The next day, she showed up at Deason's house in the person of Air Force Special Investigations Officer Adam Ring, an adult male, who all along had been pretending to be the underage female named Amber. He had with him several other law enforcement agents and a warrant to search Deason's cell phone. Deason agreed to talk with Ring and another agent inside his house.

They didn't read Deason his Miranda rights, preferring instead to keep the conversation non-custodial. At the beginning of their videotaped talk with Deason, Ring told him that he was not under arrest, that he was not in custody, and that they would leave at any time he told them to go. During their conversation, Deason confessed that he had actually believed the mythical Amber was a non-mythical fourteen-year-old girl.

II. PROCEDURAL HISTORY

In March 2016 a federal grand jury indicted Deason on one count of attempted online enticement of a minor in violation of 18 U.S.C. § 2422(b), and six counts of attempted transfer of obscene matter to a minor in violation of 18 U.S.C. § 1470 –– one count for each of the six days he transferred obscene matter to Amber.

Deason moved to quash the six § 1470 counts or to exclude evidence of the obscene matter underlying those counts because the indictment did not specify which obscene matter was the basis of which counts. The government responded by filing a superseding indictment that added more details to all of the § 1470 counts. As superseded, five of the § 1470 counts (counts two through six) specified that each one was for obscene images Deason had sent Amber on one of the five specified days in January (the 12th, 15th, 19th, 22nd, and 27th), respectively. The other § 1470 count (count seven) specified it was for the links to three obscene videos that he had sent her on February 1.¹ As a result, Deason withdrew his motion to quash the indictment or to exclude the evidence underlying the counts.

Deason also moved to suppress the videotape of the conversation that took place at his house. He argued that the content of that conversation was not admissible because he was in custody when the interview occurred, his admissions were involuntary, and he had not been read his Miranda rights. After holding an evidentiary hearing, the district court denied his motion.

The jury found Deason guilty on every count. The court denied his motions for judgment of acquittal and sentenced him to 144 months on count one and 120 months on counts two through seven, to be served concurrently.

III. ANALYSIS

Deason contends that the district court erred by denying his motion to suppress the statements he made while being questioned in his house by Ring and the other agent. He contends that there was insufficient evidence to convict on count seven, the one that involved the links to videos he had sent. He contends the six counts of attempted transfer of obscene matter to a minor were flawed because each count referred to all the obscene matter transferred on a particular date without listing specific items that were obscene (for example, count two stated that "on or about January 12, 2016, ... Deason ... did use ... the Internet and a cellular telephone to knowingly attempt to transfer obscene matter, to-wit: e-mails [sic] containing images depicting sexual activity" to an individual he believed to be fourteen years old). And Deason challenges for the first time: (1) the admissibility of screenshots and testimony about the three videos; (2) whether each of the counts charging attempted transfer of obscene matter to a minor improperly charged multiple crimes in a single count; and (3) whether the district court erred by failing to give the jury instructions to cure that problem.

A. Motion To Suppress

Everyone agrees that during the interview in his home Deason never received a Miranda warning and that he was not under arrest at any time that day. The only question is whether he was "in custody" at some point during the interview, which would have required a Miranda warning. See Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994). The only correct answer is "no."

"A defendant is in custody for the purposes of Miranda when there has been a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." United States v. Brown, 441 F.3d 1330, 1347 (11th Cir. 2006) (quotation marks omitted). To determine whether Deason was in "custody" during the interview we look at the totality of the circumstances and ask whether "a reasonable man in his position would feel a restraint on his freedom of movement to such extent that he would not feel free to leave." Id. "The test is objective: the actual, subjective beliefs of the defendant and the interviewing officer on whether the defendant was free to leave are irrelevant." Id. And under the test, "the reasonable person from whose perspective ‘custody’ is defined is a reasonable innocent person." Id.

1. The Interview

After it held an evidentiary hearing, the district court found these facts, none of which are disputed.

On February 5, 2016, Special Agent Ring obtained a warrant for the search and seizure of Deason's mobile phone at his house. That same day Ring and seven other law enforcement agents went to the house in several...