United States v. Lebowitz

• Decision Date: 05 April 2012
• Docket Number: No. 10–13349.,10–13349.
• Citation: 676 F.3d 1000,23 Fla. L. Weekly Fed. C 896
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Adam Wayne LEBOWITZ, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

23 Fla. L. Weekly Fed. C 896

676 F.3d 1000

UNITED STATES of America, Plaintiff–Appellee,

v.Adam Wayne LEBOWITZ, Defendant–Appellant.

No. 10–13349.

United States Court of Appeals, Eleventh Circuit.

April 5, 2012.

Richard Sterling Moultrie, Jr., Lawrence R. Sommerfeld, Sally Yates, U.S. Attys., Rodney D. Bullard, Asst U.S. Atty., Atlanta, GA, for Plaintiff–Appellee.

Laura D. Hogue, Hogue & Hogue, Macon, GA, Stephen Randall Scarborough, Law Offices of Stephen R. Scarborough, Atlanta, GA, for Defendant–Appellant.

Appeal from the United States District Court for the Northern District of Georgia.

Before HULL, MARCUS and BLACK, Circuit Judges.

PER CURIAM:

A jury convicted Adam Wayne Lebowitz of producing child pornography in violation of 18 U.S.C. § 2251(a) and (e), and of attempting to entice a child to engage in unlawful sexual activity in violation of 18 U.S.C. § 2422(b). The district court sentenced Lebowitz to 320 months' imprisonment on each count, to run concurrently. After examining each issued raised by Lebowitz on appeal, we affirm his convictions and sentences.

I. FACTS

When K.S. was 15 years old, he registered for a MySpace account. For MySpace profiles to be viewable by the public, the user must attest to being over the age of 21. K.S. desired such a profile, so he falsely claimed he was 21 years old on the registration form. K.S. then created an on-line profile that suggested his age was either 17 or 18 years old. On October 25, 2006, Lebowitz, whose MySpace profile identified himself as a 47–year–old doctor, sent a message to K.S. via his MySpace account, saying: “that's a great pic of you hitting the [base]ball. [G]ot any more pics of you playing?” Lebowitz provided K.S. with his contact information, and the two engaged in on-line chats and exchanged e-mails. The chats were sexual in nature, and Lebowitz sent K.S. nude photographs of himself. In one of these initial chats, K.S. told Lebowitz he was 15 years old.

After communicating with Lebowitz for a day, K.S. informed his mother of the chats and messages. K.S.'s mother obtained Lebowitz's phone number from one of his e-mails, phoned him, and threatened to kill him if he did not stop contacting her son. Lebowitz then sent K.S. a chat message asking him if anything was wrong. K.S's mother contacted law enforcement.

On October 27, 2006, K.S. and his mother met with Investigator Beth Suber of the Coweta County Sheriff's Office. At Investigator Suber's suggestion, K.S.'s mother agreed to allow K.S. to continue corresponding with Lebowitz in order to determine Lebowitz's intentions. Investigator Suber instructed K.S. to make his true age clear to Lebowitz during on-line conversations. During one on-line chat, K.S. told Lebowitz: “i [sic] would drive up there but im [sic] only 15 and odnt [sic] have a car.” Lebowitz replied: “coming to get you is not a problem.”

Lebowitz and K.S. also conversed by phone. Investigator Suber recorded the phone calls. In the last phone call, K.S. and Lebowitz arranged to meet at K.S.'s home the following day. K.S. again mentioned he was only 15 years old. Lebowitz responded in a surprised tone, “I thought you were 17.” K.S. again said he was 15. After a pause, Lebowitz responded, “you know, I've never met someone who's underage.” Lebowitz claimed he did not want any trouble, and asked K.S. when he would have his next birthday. After hearing that K.S. would not be 16 years old for another 6 months, Lebowitz said he “started” when he was 14, and that they would only “do stuff that feels right” because “friendship is more important than getting off.” Lebowitz told K.S. he liked “athletic guys,” that he had “been looking for a good friend here that [he] could kinda mess around with,” and that K.S. was “definitely that kind of guy.” Lebowitz again asked K.S. if it was safe to meet because he did not “want to get arrested or anything.” After K.S. reassured him, Lebowitz reminded K.S. to bring his baseball uniform because Lebowitz found it “really hot.” Lebowitz also told K.S. that he thought men were better than women at giving other men oral sexual stimulation, and that going out with younger guys was “an adventure.”

On November 2, 2006, Lebowitz arrived at K.S.'s home. Investigator Suber arrested Lebowitz and searched his vehicle. In the front seat she found a backpack that contained condoms and lubricants. She also found two sleeping bags and two towels. Investigator Suber then obtained a warrant to search Lebowitz's residence. Upon searching the residence, she seized a Sony notebook computer, an iPod, a HP Pavillion computer with camera, a printout of a phone number “look-up,” a piece of paper with the victim's name and address, pieces of paper with various screen names and emails, CD–R's, a Sony CPU, a green file with various MySpace printouts of screen names and email addresses, VHS tapes, bottles of Astro-glide, and various types of condoms. A VHS tape labeled “XXX” contained video of Lebowitz engaged in sexual acts with teenage males.

Agents were able to identify A.G. and C.R. as the males on the VHS tape engaged in sexual activity with Lebowitz. Agents also discovered still images from the videos of A.G. and C.R. on Lebowitz's computer, stored in a manner indicating that the images had been distributed over the internet. A.G. and the defendant began a sexual relationship when A.G. was 16 years old. However, A.G. provided conflicting statements regarding whether he was under the age of 18 at the time the video was made. C.R. began engaging in sexual relations with Lebowitz when C.R. was 15 years old. Lebowitz and C.R. engaged in sexual acts on at least ten occasions. All but the sexual encounter on the videotape occurred in Lebowitz's car. When C.R. was 16 years old, Lebowitz asked C.R. to make a videotape of their sex acts. C.R. agreed. C.R. met Lebowitz at their normal rendezvous location. Lebowitz had brought a tripod and camera, but told C.R. there was not enough space in the car to make the video. Lebowitz crawled through C.R.'s bedroom window, Lebowitz set up the video equipment in C.R.'s bedroom, and Lebowitz recorded their sexual acts.

II. PROCEDURAL HISTORY

On June 12, 2007, a federal grand jury charged Lebowitz with two counts of producing child pornography, in violation of 18 U.S.C. § 2251(a) and (e), and one count of attempting to entice a child to engage in unlawful sexual activity, in violation of 18 U.S.C. § 2422(b). Lebowitz moved to have the indictment dismissed, suppress evidence found during the searches of his car and his house, and sought to exclude printouts of the chats with K.S. on authenticity grounds.

A. Pretrial Motions

A magistrate judge recommended denying the motion to suppress the evidence found at Lebowitz's house. The magistrate judge found that: (1) Lebowitz was not entitled to a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); (2) the warrant was supported by probable cause; (3) the warrant was not overly broad; and (4) even if the warrant was defective, Investigator Suber had a good-faith basis to believe it was valid. The district court adopted the recommendation, and denied the motion to suppress the evidence seized from Lebowitz's home. The district court also denied the motion to dismiss the indictment.

The district court held a hearing on Lebowitz's motion to suppress evidence seized from his car and his challenge to the authenticity of the chat printouts. As to the search of the car, Investigator Suber testified that she believed she could search the car incident to Lebowitz's arrest. Investigator Suber's investigative report also stated this rationale. However, the district court denied the motion to suppress on an alternative basis, finding that Investigator Suber could have reasonably expected to find evidence in Lebowitz's car associated with the offense for which he was arrested.

As to the authenticity of the chat printouts, Investigator Suber testified that K.S. printed the chats and delivered them to her. K.S. confirmed to Investigator Suber that the messages were exactly what was on his computer. Investigator Suber testified that a section of chat messages was missing, but that the remainder appeared unaltered. In his trial testimony, K.S. confirmed Investigator Suber's account.

In response, Lebowitz offered the testimony of Jim Persinger, a computer forensics expert. Persinger testified that K.S.'s method of producing the printouts created a possibility for alteration. However, Persinger admitted that he had no evidence of any alteration or tampering. Persinger also admitted that the substance of many of the chats was corroborated by e-mail messages and subsequent events. The district court determined that the Government had made a prima facie showing of authenticity, and refused to exclude the printouts.

B. Trial

The case proceeded to trial. At the close of the Government's case and at the close of the evidence, Lebowitz unsuccessfully moved for judgments of acquittal. During deliberations, the jury submitted multiple written questions to the court, all pertaining to the enticement of K.S. The jury reached a verdict on the first two counts but claimed deadlock on count three. The district court gave an Allen charge. After six more hours of deliberation, the jury reached three unanimous verdicts. The jury found Lebowitz not guilty of count one (concerning the video of A.G.); guilty of count two (concerning the video of C.R.); and guilty of count three (concerning the enticement of K.S.).

C. Sentencing

On July 12, 2010, the district court held Lebowitz's sentencing hearing. The district court ruled on Lebowitz's objections to his Presentence Investigation Report (PSI), and established Lebowitz's total offense level as 40, his criminal history category as I, and his advisory Guidelines range as 292 to 365 months' imprisonment. Lebowitz, who is HIV positive, presented expert testimony concerning the risk of...