United States v. Lundy

• Decision Date: 28 March 2012
• Docket Number: No. 10–60986.,10–60986.
• Citation: 676 F.3d 444
• Parties: UNITED STATES of America, Plaintiff–Appellee. v. Damion LUNDY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

676 F.3d 444

UNITED STATES of America, Plaintiff–Appellee.

v.Damion LUNDY, Defendant–Appellant.

No. 10–60986.

United States Court of Appeals, Fifth Circuit.

March 28, 2012.

Paul David Roberts, Asst. U.S. Atty. (argued), Oxford, MS, for Plaintiff–Appellee.

Julie Ann Epps (argued), Canton, MS, for Defendant–Appellant.

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

Before DeMOSS, CLEMENT and ELROD Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Damion Lundy was convicted of the use of facilities of interstate commerce to attempt to persuade, induce, and entice a minor female to engage in illegal sexual activity. After prolonged texting and phone calls with a girl who Lundy thought to be 15—but who was actually an undercover police officer—the two agreed to meet to have sex. Lundy was arrested at the meet-up location while talking on the phone with the officer/purported 15 year old and convicted by a jury. He appeals on various grounds. We AFFIRM.

FACTS AND PROCEEDINGS

In August 2006, Lundy was a 23 year old attending Delta State College in Cleveland, Mississippi and residing in Hollandale, Mississippi. Using the name ‘Jarious Johnson’,¹ Lundy made contact with and engaged in a string of sexually laced text message and phone conversations with a girl he thought to be 15 year old “Madison Scruggs” but who in actuality was undercover Deputy Sheriff Joseph Giroux of the Lee County Sheriff's Department.

Lundy and Madison engaged in multiple conversations over the course of a week, including a phone conversation in which Lundy spoke to a female friend of Giroux's who posed as Madison. Lundy and Madison agreed to meet at the Cracker Barrel near Tupelo, Mississippi and then travel to her house to have sex. On the night of the meeting, Lundy arrived at the parking lot while having a phone conversation with the woman he believed to be Madison. He was arrested and charged with violation of 18 U.S.C. § 2422(b) for:

knowingly us[ing] facilities in interstate commerce, that is, Yahoo Internet messaging and cellular telephone conversations and text messaging, to attempt to persuade, induce and entice a 15–year–old minor to engage in sexual activity with him which could constitute the crime of statutory rape for which DAMION LUNDY, a/k/a “damionlundy,” could be prosecuted under the law of the State of Mississippi.

After the first trial resulted in a hung jury, Lundy was convicted following the second trial. He put forth no evidence at the second trial. He now appeals his conviction arguing: 1) insufficiency of the evidence; 2) the trial judge committed reversible error because the jury instruction constructively amended the indictment; 3) the trial judge's preclusion of Lundy's expert as a sanction for failure to comply with discovery was reversible error; 4) the admission of the texts and chats were done without adequate foundation or authentication and thus constitute reversible error; and 5) the trial judge admitted hearsay testimony that constitutes reversible error

DISCUSSION

1. Sufficiency of the Evidence

This court reviews a district court's denial of a motion for judgment of acquittal de novo. United States v. Restrepo, 994 F.2d 173, 182 (5th Cir.1993). “The well-established standard in this circuit for reviewing a conviction allegedly based on insufficient evidence is whether a reasonable jury could find that the evidence establishes the guilt of the defendant beyond a reasonable doubt.” Id. (quoting United States v. Sanchez, 961 F.2d 1169, 1173 (5th Cir.1992)). In addition, “[t]he evidence is viewed in the light most favorable to the verdict, accepting all credibility choices and reasonable inferences made by the trier of fact which tend to support the verdict.” United States v. Asibor, 109 F.3d 1023, 1030 (5th Cir.1997). The court's inquiry is “limited to whether the jury's verdict was reasonable, not whether we believe it to be correct.” United States v. Williams, 264 F.3d 561, 576 (5th Cir.2001). Finally, “[i]t is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt,” United States v. Lage, 183 F.3d 374, 382 (5th Cir.1999), and any conflict in the evidence must be resolved in favor of the jury's verdict. United States v. Duncan, 919 F.2d 981, 990 (5th Cir.1990).

Lundy argues that there was insufficient evidence because: a) the government failed to prove that he could have been charged with statutory rape under Mississippi law had he been able to have sex with Madison, b) the government did not prove the inducement or enticement element of the offense, and c) the government failed to prove that Lundy knew that Madison was only 15.

a. Did the Government fail to prove the Charged Offense?

Lundy argues that the government failed to prove the charged offense because the law requires that the sexual activity he attempted to engage in with Madison could have resulted in a charge of statutory rape. He argues that a charge of statutory rape is impossible because Madison was a ‘faux person’—an adult posing as a child—and therefore it could not have resulted in a charge of statutory rape since the person in question was not within the statutory age for the offense.² He argues that under Mississippi law, if someone tries but does not succeed in having sex with a ‘faux child’, the crime is attempted statutory rape which is an offense under Miss.Code Ann. § 97–1–7. This is different than the indictment that charges him with a federal crime “which would constitute the crime of statutory rape, for which [he] could be prosecuted under the laws of the State of Mississippi ( Mississippi Code Annotated § 97–3–65(a)) all in violation of Title 18, United States Code, Section 2422(b).”

Lundy's argument is an incorrect interpretation of the law he was charged with and an incorrect understanding of the factual impossibility defense. He is charged with a federal crime of attempting to engage in the illegal sexual activity of statutory rape under Mississippi law. As the government argues in its brief, “[t]he indictment does not charge Lundy with Mississippi statutory rape, but with attempting to get a minor to engage in activity, which if accomplished, would constitute statutory rape under Mississippi law.”

This court has repeatedly held that factual impossibility to complete a criminal act does not preclude a conviction for attempting to break the law. ³ Hence, Lundy's argument that he could not have committed statutory rape with a ‘faux child’ does not stop him from being charged with attempting to break the statutory law, if the facts had been as he thought they were. “Factual impossibility is not a defense if the crime could have been committed had the attendant circumstances been as the actor believed them to be.” Farner, 251 F.3d at 512.

The Farner court clearly explained the factual impossibility defense in this circuit. Farner dealt with a defendant who was charged with attempting to persuade and entice a minor to engage in criminal activity, but where, like here, the minor was in actuality an undercover officer. The court wrote:

Farner says this is a case of legal impossibility because Kathy Crawford [an FBI agent] was an adult, and the statute does not address attempted sexual activity between adults. On the other hand, the district court viewed the impossibility as factual, because the defendant unquestionably intended to engage in the conduct proscribed by law but failed only because of circumstances unknown to him ....

In any event, this circuit has properly eschewed the semantical thicket of the impossibility defense in criminal attempt cases and has instead required proof of two elements: first, that the defendant acted with the kind of culpability otherwise required for the commission of the underlying substantive offense, and, second, that the defendant had engaged in conduct which constitutes a substantial step toward commission of the crime. The substantial step must be conduct which strongly corroborates the firmness of defendant's criminal attempt. The Model Penal Code endorses this approach. See Model Penal Code § 5.01 (1985). In this case, the district court correctly concluded from the stipulated evidence, beyond a reasonable doubt, that Farner intended to engage in sexual acts with a 14–year–old girl and that he took substantial steps toward committing the crime.

Id. at 512–13 (citations omitted).

Here, the government introduced evidence that Lundy believed Madison was within the statutory rape age range of fourteen to sixteen years old. If believed by the jury, this evidence would indicate the “culpability otherwise required for the commission of the underlying substantive offense” Id. at 513. Lundy also showed up at the location of the meeting with Madison which indicates a substantial step towards completion of the crime. Therefore, under this circuit's precedent, the government introduced sufficient evidence to prove the charged offense in the indictment.

b. Was the evidence sufficient to show persuasion, inducement or enticement?

Lundy argues that the government failed to prove this part of the crime and essentially argues that because Madison was willing, there was no enticement, inducement, or persuasion involved. He argues that the government “had to show that Lundy did something more than just ask Madison if she wanted to have sex ... [and] he had to move her from an unwillingness to have sex with him to a willingness to do.”

Whether there was inducement, persuasion, or enticement is a question of fact for the jury to decide. All this court must decide is whether or not enough evidence was presented for a reasonable jury to come to the conclusion that there was some form of inducement. This court has previously upheld similar convictions with similar fact patterns. See United States v. Barlow, 568 F.3d 215, 219–20 (5th Cir.2009) (finding that the...