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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-10809
Non-Argument Calendar
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D.C. Docket No. 8:17-cr-00037-VMC-AEP-1
DAVID PAUL LYNCH,
Defendant-Appellant,
versus
UNITED STATES OF AMERICA,
Plaintiff-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(August 14, 2019)
Before NEWSOM, GRANT, and FAY, Circuit Judges.
PER CURIAM:
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David Lynch appeals his convictions for eight counts of production of child
pornography, one count of receipt of child pornography, one count of possession of
child pornography, one count of traveling in foreign commerce to engage in illicit
sexual conduct with a minor, and one count of attempting to travel in foreign
commerce to engage in illicit sexual conduct with a minor. On appeal, Lynch
argues that (1) the government did not introduce sufficient evidence to prove that
his victims were under 18 years old or that he traveled with the intent to commit
illicit sex acts and (2) the district court abused its discretion by denying his request
for a jury instruction relating to hearsay statements. After careful review, we
affirm.
I.
A.
In June 2005, Lynch traveled to the Philippines and engaged in sexual acts
with a girl he called Liza. He filmed their sex acts with video cameras from two
different angles, and also took still photos of her genitals. In an electronic
spreadsheet that he used to keep track of female contacts in the Philippines, Lynch
described Liza as “young” and “15.” And one year later, Lynch said in online
chats that he was Liza’s “ex bf,” that he took “naked pics” of her, and that “she is
only 16 he he.”
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Lynch returned to the Philippines in December 2006. Prior to the visit, he
asked a contact named Fhey to “find 4 girls” for him to engage in sexual acts with.
Fhey sent him pictures of the girls, and Lynch expressed particular interest in one
girl. Fhey informed him that the girl’s name was Erica, and that she was 13 years
old. Lynch replied, “nice . . . is she virgin?” On his trip, he made a video of
himself engaging in sex acts with four people, including Erica. He also took still
photographs of Erica, focusing on her genitals.
When he returned home in late December 2006, Lynch chatted online with
“Thomas”—another one of Fhey’s clients—to compare notes on their most recent
trips to the Philippines. Thomas showed Lynch a picture of a girl named Rica and
said, “she is 13.” Lynch commented that Rica had “a gorgeous body.” Thomas
asked Lynch if he liked to “roleplay” or “ageplay” with the girls. Lynch replied,
“no need to role play when the ages are real.” Half a year later, on yet another trip
to the Philippines, Lynch met Rica and took a close-up picture of her genitals.
By 2015, Lynch had developed an online relationship with a Filipino woman
named Rose who sent Lynch erotic and pornographic photos of herself and her 11-
year-old daughter, Denise, in exchange for a laptop and money. In 2016, he asked
Rose, “how old is she now?” And Rose replied, “this December she is 13 yrs old.”
That December, Lynch made plans to meet up with Rose and Denise “in real” in
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the Philippines. He and Rose discussed at length what sex acts Denise was “ready”
to perform.
Meanwhile, based on a tip sent to the National Center for Missing and
Exploited Children, the FBI obtained a search warrant for various email and online
messaging accounts that turned out to belong to Lynch. On December 29, 2016,
the FBI arrested Lynch as he was boarding a plane to the Philippines. The FBI
found sex toys, male performance drugs, cameras, data storage devices, and a large
amount of candy in his luggage. When FBI agents searched his home, they found
thousands of pornographic videos and photos featuring what appeared to be
underage girls.
B.
On September 6, 2017, a federal grand jury returned a twelve-count, third
superseding indictment against Lynch. Counts 1-5 and 7-9 charged Lynch with
production and attempted production of child pornography—specifically, for
taking sexually graphic photos and videos of Liza, Erica, and Rica. Each count
alleged that Lynch “did use and persuade and attempt to use and persuade a minor”
to engage in sexually explicit conduct for the purpose of producing child
pornography. See 8 U.S.C. § 2251(a) and (e). In other words, the indictment
charged Lynch both with actual production, if the jury found that the girls were
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actually under 18, and—in the alternative—with attempted production, if the jury
found that Lynch believed the girls to be minors. Under the statute, the jury could
convict Lynch on either theory, so long as the jurors unanimously agreed which
one.
Count 6 charged Lynch with traveling in foreign commerce with intent to
engage in illicit sexual conduct with a minor—specifically, for the December 2006
trip where he was caught on video engaging in sex acts with Erica—in violation of
18 U.S.C. § 2423(b). Count 10 charged Lynch with knowing receipt of child
pornography—specifically, for receiving photos of Denise over email—in
violation of 18 U.S.C. § 2252(a)(2) and (b)(1). Count 11 charged Lynch with
attempting to travel in foreign commerce with intent to engage in illicit sexual
conduct with a minor—specifically, for the December 2016 trip where the FBI
caught him on his way to meet Denise—in violation of 18 U.S.C. § 2423(b) and
(e). Count 12 charged Lynch with knowing possession of child pornography—a
catch-all charge covering thousands of child pornography videos and photographs
found in the FBI raid of his home—in violation of 18 U.S.C. § 2252(a)(4)(B) and
(b)(2).
At trial, the government presented testimony and evidence that included
photos, videos, and Lynch’s own texts and online chat messages. Lynch did not
dispute that he produced, starred in, received, and possessed all of the
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pornographic photos and videos. He admitted that he had sent and received all of
the messages attributed to him. He acknowledged that he had traveled to the
Philippines many times to pay for sex. His defense was that the chats were “all a
fantasy,” that he genuinely believed Erica, Liza, Rica, and Denise were adult
women, and that they were in fact adult “prostitutes.” The crux of his argument
was that adult “women in the Philippines look different than women throughout
the rest of the world” and physically resemble underage girls.
In addition, Lynch requested a limiting instruction regarding statements
about the victims’ ages made by various unavailable declarants—including
Thomas, pimps, and the girls themselves—contained in the videos and online chat
messages shown to the jury. Lynch did not contest that the statements were
admissible to prove what he himself believed about the girls’ ages. He argued,
however, that the statements were inadmissible hearsay if offered to prove the truth
of the matter asserted—that is, as substantive evidence of the ages of the victims.
After consideration, the district court declined to give a limiting instruction.
During deliberations, the jury requested clarification on the mens rea
required for the various charges. The jury submitted a written question: “If the
defendant believed Liza, Erica, Rica and Denise were under the age of 18 (whether
or not they were) is that sufficient to satisfy the condition that they be a minor?”
Lynch and the government agreed on a written response: “Yes as to counts 1, 2, 3,
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4, 5, 7, 8, 9, & 11,” and “No as to counts 6, 10 & 12.”1 Id. In other words, the
parties stipulated that the government only had to prove that the girls were actually
minors to obtain a guilty verdict on the travel, receipt, and possession charges—not
the production of child pornography charges, or the attempted travel charge.
The jury convicted Lynch on all counts. Lynch now appeals.
II.
A.
Lynch first contends that the government failed to introduce sufficient
evidence that Liza, Erica, Rica, and Denise were under 18 years old or that he
traveled with the intent to commit illicit sex acts. We review a challenge to the
sufficiency of the evidence de novo, viewing “the evidence in the light most
favorable to the government.” United States v. Mercer, 541 F.3d 1070, 1074 (11th
Cir. 2008). All “reasonable inferences and credibility choices are made in the
government’s favor.” Id. Evidence is sufficient if “a reasonable jury could have
found the defendant guilty beyond a reasonable doubt.” Id.
A person commits the crime of production of child pornography when he
“employs, uses, persuades, induces, entices, or coerces any minor to engage in . . .
1
The government may have conceded too much on Count 6, which charged Lynch with traveling
in foreign commerce with the intent to engage in a sexual act with a minor. We have said that
convictions “for travel in interstate commerce with intent to engage in a sexual act with a minor
in violation of 18 U.S.C. § 2423(b) do not require the existence of an actual minor victim.”
United States v. Farley, 607 F.3d 1294, 1325 (11th Cir. 2010).
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any sexually explicit conduct for the purpose of producing any visual depiction of
such conduct.” 18 U.S.C. § 2251(a). Importantly, § 2251 criminalizes both actual
and attempted production of child pornography. The crime of “attempted
production of child pornography” under § 2251(a) and (e) “does not require an
actual minor victim,” so long as the defendant “believed [the victim] to be”
underage. United States v. Lee, 603 F.3d 904, 912–13 (11th Cir. 2010) (upholding
a conviction under § 2251 where the defendant attempted to use and persuade a
fictitious minor, invented as part of a sting operation, to engage in sexually explicit
conduct for the purpose of producing child pornography).
At trial, Lynch conceded that Counts 1-5 and 7-9 did not require an actual
minor victim, and that the jury could find him guilty if he believed the girls to be
underage. On appeal, Lynch does not even contest that the evidence was sufficient
to conclude that he believed his victims to be minors—and that is just as well,
because the evidence for that proposition is overwhelming. Instead, for the first
time on appeal, he argues that deficiencies in the indictment and jury instructions
required the government to prove actual production of child pornography, not
attempted production. These new arguments are meritless and likely waived—the
indictment alleged that Lynch “did use and persuade and attempt to use and
persuade a minor” to engage in sex acts for child pornography, and Lynch
explicitly agreed in response to the jury’s written question that the government did
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not need to prove actual age in order to prevail on those counts. But we need not
dwell on these new arguments, because in any event, a reasonable juror could have
concluded from the evidence that Liza, Erica, Rica, and Denise were minors.
In addition to introducing Lynch’s own statements about the girls’ ages, the
government called a pediatrician, Dr. Lambert, as an expert witness. He testified
that Liza was “early-ish in puberty,” Erica was “nowhere close to being to the end
of puberty,” Rica was “not done with puberty yet,” and Denise was “[e]arly in
puberty”—and that 99% of human females still in puberty are under the age of 18.
Even Lynch’s own expert, who testified only for the proposition that doctors can
make mistakes in assessing the ages of women depicted in pornography, refused to
testify that Liza, Erica, Rica, or Denise were over the age of 18. When shown a
photo of Denise, he said, “Looks like a child.”
Most importantly, the jury also saw dozens of photographs and videos—both
pornographic and nonpornographic—of all four girls. The jury could reasonably
have concluded, based on its own judgment and perception, that Lynch’s victims
were minors. Cf. United States v. Smith, 459 F.3d 1276, 1287 (11th Cir. 2006)
(stating that “reasonable inferences that could be drawn” from “actual
photographs” supported a jury finding that “the victim was so obviously a minor
that the defendant must have known as much”). Lynch has given this Court no
reason to think otherwise.
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There was also sufficient evidence to support a finding that Lynch traveled
to the Philippines with the intent to engage in illicit sexual conduct with a minor in
2006, and that he was attempting to travel to the Philippines with the intent to
engage in illicit sexual conduct with a minor when he was stopped at the airport by
the FBI in December 2016. As to the 2006 offense, there was evidence that Lynch
made arrangements with Erica’s pimp in advance of his visit. And as to the 2016
offense, Lynch and Rose communicated in detail about what sex acts he and
Denise would perform. Lynch also kept a calendar, in which he had January 7-10,
2017 blocked off for “Rose Denise.” Finally, he was apprehended while boarding
a flight with a bag full of male performance drugs, candy, and sex toys. There was
sufficient evidence for the jury to conclude that Lynch was traveling to the
Philippines in order to engage in sexual conduct with Denise, who he believed had
just turned 13.
B.
Second, Lynch argues that the trial court abused its discretion by failing to
give a limiting instruction with regard to hearsay statements contained in Lynch’s
videos and online chat messages. We review the district court’s refusal to give a
limiting instruction for abuse of discretion. United States v. Gonzalez, 975 F.2d
1514, 1516 (11th Cir. 1992). Even if the ruling was an abuse of discretion, “it will
not result in a reversal of the conviction if the error was harmless.” United States
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v. Docampo, 573 F.3d 1091, 1096 (11th Cir. 2009). An error is harmless and
“does not warrant reversal if the purported error had no substantial influence on the
outcome” of the trial and “sufficient evidence uninfected by error supports the
verdict.” United States v. Fortenberry, 971 F.2d 717, 722 (11th Cir. 1992).
If a court admits evidence that is admissible for one purpose but
inadmissible for another, and the defendant makes a “timely request” for a limiting
instruction, the court “must restrict the evidence to its proper scope and instruct the
jury accordingly.” Fed. R. Evid. 105. Here, the court allowed in statements about
the alleged victims’ ages that were admissible to prove Lynch’s state of mind, but
inadmissible to prove that his victims were minors. The government argues that
some of the statements at issue may have been admissible under well-established
hearsay exceptions; in some cases, for instance, Lynch “manifested that [he]
adopted or believed [them] to be true.” Fed. R. Evid. 801(d)(2)(B). But hearsay
exceptions at best account for some, not all, of the statements about age submitted
to the jury. Accordingly, the district court likely erred when it denied Lynch’s
request for a limiting instruction.
Nevertheless, any error here was harmless. As we explained at length in
addressing Lynch’s first claim, there was sufficient admissible evidence that
Lynch’s victims were minors—including expert testimony, the admissible chat
messages, and the many photos and videos of the victims. We cannot say that
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hearsay within the chat transcripts had a substantial influence on the outcome of
the trial, so the error does not warrant reversal.
AFFIRMED.
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