United States v. McPherson, 11-14684
| Decision Date | 24 September 2014 |
| Docket Number | No. 11-14684,11-14684 |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LARRY DOUGLAS MCPHERSON, Defendant - Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
[DO NOT PUBLISH]
D.C. Docket No. 1:10-cr-00132-CG-N-1
Appeal from the United States District Court for the Southern District of Alabama
Before ED CARNES, Chief Judge, JORDAN and ROSENBAUM, Circuit Judges.
In August 2010 a federal grand jury returned a superseding indictment charging Larry McPherson with one count of using a computer connected to the Internet to knowingly attempt to persuade a minor to engage in sexual activity in violation of Alabama Code § 13A-6-67(a)(2), in violation of 18 U.S.C. § 2422(b) (Count 1); one count of attempting to persuade a minor to engage in sexually explicit conduct for the purpose of producing a video tape, in violation of 18 U.S.C. § 2251(a) (Count 2); and one count of possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) (Count 3). A jury convicted him of all three counts. This is his appeal.
The specific conduct giving rise to McPherson's indictment began in December 2009, when McPherson went out to dinner with his daughter, Ashley, and her daughter, B.A., who was fifteen years old at the time. At that dinner, while Ashley had gone to the restroom, McPherson told B.A. that he was going to put a video camera under her bed and that she "knew what kind of pictures he liked," which she took to mean "dirty pictures." B.A. told her mother about the incident after dinner, stating that "[h]e did it again."1
Ashley decided to collect evidence of her father's behavior toward her daughter. She installed a small video camera in B.A.'s bedroom, which recorded McPherson entering B.A.'s room the next morning and hiding his video camera beneath her bed. She also instructed B.A. to create a new email address to collect written evidence of her grandfather's advances.
Using that email address, B.A. emailed McPherson in April 2010 to tell him that she had fun attending her school prom. McPherson responded to that email with a bevy of questions, including the following: B.A. eventually wrote back to her grandfather, letting him know that she had not recorded anything.
Ashley eventually contacted the FBI about her father's actions. As a result, FBI Agent Paul Roche began posing as B.A. in email correspondence with McPherson that lasted for several weeks in June 2010. In his first series of emails with McPherson, Roche wrote, In his reply email, McPherson responded, In later emails sent in that same exchange, McPherson wrote, He also directed B.A. to "[t]ake full view [video], front and back, closeup of [your] VJ with your finger in it."
McPherson's sexually explicit conversations with Agent Roche escalated over time. He told Roche in one exchange that the emails from Roche gave him an erection, and that just thinking of B.A. "does that to me." In another email he wrote, In one of his final emails before being arrested, McPherson wrote,
Roche eventually arranged for McPherson to meet B.A. When McPherson arrived at the prearranged meeting place, FBI agents stopped his car and placed him under arrest. After the arrest, Agent Roche conducted a search of McPherson's home. He recovered two recordable DVDs that were manufactured in Taiwan and contained 26 video files. Most of those files depicted B.A. "at amuch younger age naked at various points, . . . posing in a bathroom and also masturbating." Some of the videos depicted B.A. masturbating with a toothbrush.
As mentioned earlier, a federal grand jury charged McPherson in a three-count superseding indictment relating to this conduct. At trial, McPherson moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29 on all three counts after the government had presented its case. The district court denied that motion.
McPherson also moved for a mistrial based on the district court's alleged denial of his right to a public trial. He based that motion on the fact that the district court had prevented his son, Greg McPherson, from attending the trial after the government had requested that he be sequestered under Federal Rule of Evidence 615. The government made that request because both the prosecution and defense had listed him as a potential witness. The court denied McPherson's motion for a mistrial. The jury ultimately convicted McPherson on all three counts, and he was sentenced to 235 months' imprisonment.
Count 1 of the indictment charged McPherson with using a computer connected to the Internet to knowingly attempt to persuade, induce, entice, and coerce B.A. to engage in sexual activity under circumstances that would violateAlabama Code § 13A-6-67(a)(2). Section 13A-6-67(a)(2), Alabama's second-degree sexual-abuse statute, makes it a crime for an adult to subject a minor to sexual contact when that minor is between the ages of 12 and 16.
McPherson challenges his conviction on Count 1, asserting that the government presented insufficient evidence for the jury to convict on that count. He premises his challenge on the contention that a defendant can violate § 13A-6-67(a)(2) only through forceful and coercive behavior. McPherson contends that proof of forceful or coercive behavior is required because § 13A-6-67(a)(2) makes it a crime to "subject[]" a minor to sexual contact, and the plain meaning of the verb "to subject" requires evidence of forceful or coercive conduct. He claims that the evidence was insufficient because it "show[ed] lust and, at most, invitation to sexual conduct," but it did not show any coercion by McPherson.2
Although we usually review de novo challenges to the sufficiency of the evidence, McPherson never raised the argument to the district court that he now presents on appeal. Our review should therefore be only for plain error. See United States v. Straub, 508 F.3d 1003, 1011 (11th Cir. 2007) (). Nevertheless, even under de novo review, McPherson's argument cannot prevail.
McPherson's challenge to his conviction on Count 1 is meritless because its underlying premise is wrong. It limits the plain meaning of "subjects" without explaining why such a narrow construction is appropriate for § 13A-6-67(a)(2). Although McPherson is correct that "subjects" means "to bring under control or dominion" or "to reduce to subservience or submission," see Webster's Third New International Dictionary 2275 (1993), he fails to mention that the word's plain meaning also includes "to cause to undergo or experience some action or treatment," Webster's New World Dictionary 1334 (3d ed. 1991), and to "expose," Random House Unabridged Dictionary 1893 (2d ed. 1993); Webster's Third New International Dictionary 2275 (1993). That plain meaning is consistent with prior decisions in our circuit. See Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1295-96 (11th Cir. 2007) (). Most importantly, that plain meaning is also consistent with Alabama law. See M.G. v. State Dep't of Human Res., 44 So. 3d 1100, 1106 (Ala. Civ. App. 2010) (); see also Pettibone v. State, 91 So. 3d 94, 118 (Ala. Crim. App. 2011) ().
McPherson's narrow definition of "subjects" also conflicts with the Alabama statutes criminalizing sexual abuse. For example, an individual commits first-degree sexual abuse under Alabama law if he "subjects another person to sexual contact by forcible compulsion." Ala. Code § 13A-6-66. Under McPherson's definition of "subjects," the "forcible compulsion" element of § 13A-6-66 would be superfluous. Because we interpret statutes in context and disfavor interpretations that render statutory language superfluous, we reject McPherson's novel interpretation. See, e.g., Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 2125 (2001) () (quotation marks omitted); Wash. Mkt. Co. v. Hoffman, 101 U.S. 112, 115-16 (1879) () (quotation marks omitted); In re Rothstein, Rosenfeldt, Adler, P.A., 717 F.3d 1205, 1214 (11th Cir. 2013) (...
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