Case: 15-10611 Date Filed: 12/09/2015 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-10611
Non-Argument Calendar
________________________
D.C. Docket No. 1:14-cr-00167-WSD-LTW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN MCGILL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(December 9, 2015)
Before HULL, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 15-10611 Date Filed: 12/09/2015 Page: 2 of 8
After a jury trial, John McGill appeals his conviction for knowingly
attempting to persuade, induce, and entice a minor to engage in illegal sexual
activity, in violation of 18 U.S.C. § 2422(b). According to the trial evidence,
McGill responded to a Craigslist ad posted by an undercover officer posing as the
mother of a 13-year-old girl. Through a series of emails and text messages, McGill
arranged to travel to the fictitious mother’s residence to engage in sexual activity
with her fictitious daughter. When McGill arrived on the mother’s doorstep with a
condom in his pocket, he was arrested. After the jury found McGill guilty, the
district court imposed a 120-month sentence.
On appeal, McGill argues that: (1) the district court abused its discretion in
denying his motion to dismiss the indictment; (2) the district court abused its
discretion in not admitting the Internet Crimes Against Children Task Force
Operational and Investigational Standards (“ICAC Standards”); and (3) the trial
evidence was insufficient to sustain a conviction under 18 U.S.C. § 2422(b)
because it showed only that he communicated with the fictitious mother and not
directly with the fictitious daughter. After review, we affirm.
2
Case: 15-10611 Date Filed: 12/09/2015 Page: 3 of 8
I. MOTION TO DISMISS INDICTMENT
The district court did not abuse its discretion when it denied McGill’s
motion to dismiss the indictment. 1 It is well-settled that a motion to dismiss an
indictment does “not provide for a pre-trial determination of the sufficiency of the
evidence,” and that “[t]he sufficiency of a criminal indictment is determined from
its face.” United States v. Salman, 378 F.3d 1266, 1268 (11th Cir. 2004)
(quotation marks omitted); see also Fed. R. Crim. P. 12(b)(3)(B). To avoid
dismissal, the charging document “must contain the elements of the offense
intended to be charged, and sufficiently apprise the defendant of what he must be
prepared to meet.” United States v. Sharpe, 438 F.3d 1257, 1263 (11th Cir. 2006)
(quotation marks omitted).
Section 2422(b), the statute under which McGill was charged, states, in
relevant part:
Whoever, using the mail or any facility or means of interstate or
foreign commerce . . . knowingly persuades, induces, entices, or
coerces any individual who has not attained the age of 18 years, to
engage in prostitution or any sexual activity for which any person can
be charged with a criminal offense, or attempts to do so, shall be fined
. . . and imprisoned . . . .
18 U.S.C. § 2422(b). McGill’s indictment charged that he, “using a facility and
means of interstate commerce, knowingly attempted to persuade, induce, and
1
This Court reviews a district court’s denial of a motion to dismiss an indictment for
abuse of discretion. United States v. Evans, 476 F.3d 1176, 1178 (11th Cir. 2007).
3
Case: 15-10611 Date Filed: 12/09/2015 Page: 4 of 8
entice an individual who had not attained the age of 18 years to engage in sexual
activity for which the defendant could be charged with a criminal offense, in
violation of Title 18, United States Code, Section 2422(b).” In other words, the
face of McGill’s indictment contained the elements of a § 2422(b) offense and
sufficiently apprised McGill of the accusations against him.
McGill’s argument in his motion—that he did not attempt to persuade,
induce, entice, or coerce a minor because his email and text message
communications were with “Amy,” the fictitious parent, rather than “Emily,” the
fictitious minor—relate to the sufficiency of the trial evidence, rather than the
facial validity of the indictment. See Sharpe, 438 F.3d at 1263. Therefore, the
district court properly denied McGill’s motion to dismiss the indictment.
II. EVIDENTIARY ISSUE
As for McGill’s evidentiary issue, the district court did not abuse its
discretion when it refused to admit Defendant’s Exhibit 1, the ICAC Standards,
tendered by McGill because it was not properly authenticated. At trial, McGill
made no objection to the district court’s evidentiary ruling and failed to make a
proffer and thus arguably failed to adequately preserve the issue. See United
States v. Stephens, 365 F.3d 967, 974 (11th Cir. 2004) (explaining that the
defendant must show that his evidentiary objection was adequately preserved or
that the ruling constituted plain error).
4
Case: 15-10611 Date Filed: 12/09/2015 Page: 5 of 8
In any event, McGill has not shown any reversible error at all with respect to
Defendant’s Exhibit 1. When asked whether Defendant’s Exhibit 1 was a fair and
accurate copy of the ICAC Standards, GBI special agent Brook Lindsey initially
responded “I guess so.” The district court found that this equivocal statement was
insufficient to identify and authenticate the exhibit. See Fed. R. Evid. 901(a),
(b)(1) (providing that one way to authenticate a piece of evidence is testimony that
the “item is what it is claimed to be”). Notably, upon further questioning, Lindsey
indicated that, although she had reviewed the ICAC Standards in the past, she
could not remember everything in them and could not say one way or the other
whether Defendant’s Exhibit 1 was the same ICAC Standards that she had
reviewed. Under the circumstances, it was within the district court’s discretion to
refuse to admit Defendant’s Exhibit 1. See United States v. Caldwell, 776 F.2d
989, 1001 (11th Cir. 1985) (“The decision of whether or not a particular piece of
evidence has been appropriately identified falls within the discretionary function of
the district court, and that determination will not be disturbed on appeal absent a
showing that there is no competent evidence to support it.” (quotation marks
omitted)).
Alternatively, McGill has not shown that the district court’s refusal to admit
the ICAC Standards affected his substantial rights. McGill questioned the
government’s witnesses about their compliance with the ICAC Standards, and he
5
Case: 15-10611 Date Filed: 12/09/2015 Page: 6 of 8
has not shown how the failure to admit the ICAC Standards themselves had a
“substantial influence” on the jury’s verdict. See id. at 977.
III. SUFFICIENCY OF THE EVIDENCE
Finally, the government presented ample evidence to establish that McGill
attempted to knowingly persuade, induce, entice, or coerce a minor to engage in
unlawful sex. See United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004).
McGill’s email and text message conversations with “Amy,” the fictitious mother
of “Emily,” demonstrate a clear intent on McGill’s part to cause or stimulate the
occurrence of unlawful sexual contact between him and Emily. See id. at 1287
(explaining that the term “induce” unambiguously means “to stimulate the
occurrence of” or “cause”). McGill was aware that 13-year-old Emily would be
participating in the unlawful sexual contact. In detailed messages to Amy, McGill:
(1) asked numerous questions about Emily’s interests and sexual experience, what
Emily would enjoy, and what would “freak her out”; (2) requested that Emily wear
“sexy panties” because “[g]uys really like that” and take a shower “everywhere
because we may go there”; and (3) described what he would say and do to make
Emily feel comfortable and the sex acts he planned to perform with Emily when he
arrived at Amy’s house. Furthermore, McGill took a substantial step towards
committing the crime by driving fifty miles to the rendezvous spot (a Chevron gas
station) and then to Amy’s residence, and bringing a condom. See id. at 1288
6
Case: 15-10611 Date Filed: 12/09/2015 Page: 7 of 8
(finding that a substantial step was taken when the defendant’s “acts as a whole
strongly corroborate the required culpability”).
McGill’s argument that communications with an adult intermediary are
insufficient to support a § 2422(b) conviction lacks merit. It is well-settled in this
Circuit that “direct communications with a minor or supposed minor is
unnecessary under the text of § 2422(b).” Id.; see also United States v. Lee, 603
F.3d 904, 912-13 (11th Cir. 2010) (collecting cases). In United States v. Murrell,
this Court affirmed a conviction under § 2422(b)’s attempt clause even though the
defendant’s only contact was with an undercover police officer posing as an adult
man with a fictitious teen daughter. 368 F.3d at 1284. The Murrell Court
concluded that, by contacting the fictitious parent in order to “cause the minor to
engage in sexual activity with him,” the defendant had the necessary specific intent
to induce the minor to engage in unlawful sexual activity. Id. (noting that “the
efficacy of § 2422(b) would be eviscerated if a defendant could circumvent the
statute simply by employing an intermediary to carry out his intended objective”).
Thus, under Murrell, McGill’s communications with fictitious-parent Amy were
sufficient to show McGill “acted with a specific intent to persuade, induce, entice,
or coerce” a minor to engage in unlawful sexual activity. See id. at 1286.2
2
We note that McGill’s counsel failed to move for a judgment of acquittal at trial, which
would ordinarily result in review only for a miscarriage of justice. See United States v.
Milkintas, 470 F.3d 1339, 1343 (11th Cir. 2006). Under this standard, we must affirm unless
7
Case: 15-10611 Date Filed: 12/09/2015 Page: 8 of 8
For all these reasons, we affirm McGill’s conviction and sentence.
AFFIRMED.
“the evidence on a key element of the offense is so tenuous that a conviction would be
shocking.” Id. (quotation marks omitted). Here, however, we readily conclude that the trial
evidence amply supported all the elements of a § 2422(b) offense under the attempt clause, and
thus we need not reach any miscarriage-of-justice issue. Additionally, because the trial evidence
is sufficient to support the conviction, McGill has sustained no prejudice from his trial counsel’s
failure to move for a judgment of acquittal.
8