United States v. James P. Hornaday

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
December 13, 2004
No. 03-13992 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 02-14081-CR-DLG

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES P. HORNADAY,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(December 13, 2004)

Before ANDERSON, CARNES and BRIGHT*, Circuit Judges.

CARNES, Circuit Judge:

It is a federal crime to use the internet to knowingly attempt to persuade,

*
Honorable Myron H. Bright, United States Circuit Judge for the Eighth Circuit, sitting
by designation.
induce, entice, or coerce a minor to engage in unlawful sexual activity, 18 U.S.C.

§ 2422(b), and it is also a crime to aid or abet another in committing a federal

crime, 18 U.S.C. § 2. After using the internet to contact a person, who turned out

to be an undercover government agent, in order to arrange for sex with two

children, James Hornaday was charged by superseding indictment with violating

both § 2422(b) and § 2. The case was tried to a jury, which returned a general

guilty verdict.

In his appeal Hornaday contends that his actions are not prohibited by §

2422(b) because he never used the internet to communicate directly with a minor.

He also contends that he is entitled to a new trial because, under the facts of this

case, it was improper for the court to instruct the jury that he could be convicted

pursuant to § 2, and the jury’s general verdict may have been based on that

improper legal theory. He is wrong about the first point. As for the second, there

was error but it was harmless.

I.

“Loving Families” is an internet chat room where people communicate via

realtime messages about having sex with children. As part of his duties with the

Law Enforcement Against Child Harm Task Force and the St. Lucie County

Sheriff’s Office, Detective Neil Spector entered the “Loving Families” chat room

2
on August 28, 2002. His undercover profile for the chat room described him as

“Wayne,” the father of a son and daughter.

Hornaday contacted “Wayne” via instant messaging.1 He said he was a

bisexual male “searching for a loving family” and that he had “had family

experiences before” and “want[ed] more.” “Wayne” said that he enjoyed “family

love” and sometimes had bisexual experiences. Hornaday described his prior

sexual encounters with mothers and their daughters. He asked whether “Wayne”

had sex with his children, and he sent a nude photograph of himself to “Wayne.”

“Wayne” suggested that he call Hornaday and Hornaday agreed. During

that conversation, Hornaday told “Wayne” about some of his prior sexual

experiences with families, including minors, and said he was looking for another

family. He explained: “It’s very tough for me to find somebody that’s, you know,

going to accept me into their home and accept me having sex with their children or

have sex, you know, sex with each other.”

The next day, August 29, 2002, “Wayne” contacted Hornaday via instant

messaging. Hornaday asked “are you interested in a bi male like me for your

1
Detective Spector explained at trial that instant messaging involves the transmission of
realtime messages between two people. It is a private conversation, unlike a chat room
discussion where numerous people may be reading and sending text messages during the same
ongoing discussion.

3
family?” He spoke about his sexual encounters with the minor daughter of a

former girlfriend and asked about “Wayne’s” children’s sexual interests. “Wayne”

said “Brian” was twelve and “Susie” was thirteen and asked what he should tell

them. Hornaday replied: “I guess you can tell them you met a nice bisexual single

male that would like to join you all for friendship and sex.” Hornaday also sent

three pornographic photographs of himself, two of which showed him in graphic

poses with a girl he described as fourteen years of age.

Later that day, Hornaday contacted “Wayne” via instant messaging and

asked whether he would show the photographs to “Brian” and “Susie.” Hornaday

asked about “Wayne’s” sexual interests and about the children’s sexual interests.

He also asked about the family’s prior sexual experiences together. They agreed

that “Wayne” would call Hornaday momentarily, and he did.

During their phone conversation, Hornaday asked whether the children

could be trusted not to tell anyone and he talked again about his sexual

experiences with minors. Because “Wayne” and Hornaday both had plans that

weekend, Hornaday suggested they get together the next weekend. They agreed to

meet the next Saturday and see what happened. “Wayne” asked for pictures of

Hornaday clothed to share with the children. He also asked about Hornaday’s

expectations so that the children would know beforehand what was going to

4
happen.

The men did not talk again until “Wayne” called Hornaday on Wednesday,

September 4, 2002. At that time, Hornaday asked if “Wayne” had shown the

children the photographs he sent and what they thought of him.

The next morning, “Wayne” contacted Hornaday by instant messaging.

Hornaday asked: “[D]o you think either or both of the kids are anxious to explore

me sexually?” He expressed interest in sex with “Wayne” and with each of the

children. The men agreed to meet at a local Friendly’s Ice Cream on Saturday

morning. A follow-up email the next day confirmed their plans.

On Saturday, September 7, 2002, Hornaday was arrested when he arrived at

Friendly’s to meet “Wayne” and the children. He was charged by superseding

indictment with violating 18 U.S.C. § 2422(b) and 18 U.S.C. § 2. After a jury

trial, during which the jury heard recordings of the telephone calls and was given

print-outs of the instant messages and photographs, a general verdict of guilt was

returned.

II.

In 2002, when Hornaday contacted “Wayne,” § 2422(b) provided that:

Whoever, using the mail or any facility or means of interstate or
foreign commerce, or within the special maritime and territorial jurisdiction
of the United States knowingly persuades, induces, entices, or coerces any

5
 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 under this title, imprisoned not
more than 15 years, or both.

18 U.S.C. § 2422(b). The statute was amended in 2003 to increase the penalties,

but not in any way that matters to this appeal.

Hornaday contends that his actions are not prohibited by § 2422(b) because

he never used the internet to communicate directly with a minor – he only

communicated with “Wayne,” an adult. That argument fails because, while this

appeal was pending, another panel of this Court held that the use of an adult

intermediary like “Wayne” does not take the defendant’s actions outside the

prohibitions of § 2422(b). United States v. Murrell, 368 F.3d 1283, 1286–88 (11th

Cir. 2004).

Murrell involved a factual scenario that matches this one in all relevant

respects: a sexual predator used the internet to communicate with an undercover

agent posing as an adult intermediary who would arrange for the sexual predator

to engage in various unlawful sexual activities with a minor. Id. at 1284–85. The

panel concluded that the defendant’s “conduct fit[] squarely within the definition

of ‘induce’” in § 2422(b), id. at 1287, and that the use of an adult intermediary did

not change the analysis, see id. at 1287 (noting that “the efficacy of § 2422(b)

6
would be eviscerated if a defendant could circumvent the statute simply by

employing an intermediary to carry out his intended objective”). Because the

defendant in the Murrell case had the intent to induce a minor to engage in

unlawful sexual activities and took a substantial step toward committing the

offense, the Court upheld his § 2422(b) conviction. Id. at 1286–88.

Hornaday’s attempt to sexually abuse children using a parent who turned

out to be a law enforcement agent is not different in any material way from what

happened in the Murrell case, which is not surprising since the same detective was

posing as the parent in each. Because the cases are not distinguishable on the

facts, Murrell forecloses most of Hornaday’s arguments about why the statute

should not be applied to him. Foreclosed are his arguments that the plain statutory

language does not cover this type of conduct and we should accordingly look

behind that language to examine Congress’ intent in passing § 2422(b), and his

assertion that the rule of lenity requires interpreting the statute so that it does not

cover his actions.

Also foreclosed is Hornaday’s argument that reading the statute to cover his

conduct would entail such a novel interpretation that it could be applied only to

conduct occurring after that interpretation was announced. The interpretation

announced in Murrell was applied to the defendant in that case even though his

7
conduct obviously preceded the decision applying the statute to it. In a similar

fashion, Hornaday’s arguments that § 2422(b) is void for vagueness insofar as

adult intermediary situations are concerned cannot be reconciled with Murrell’s

holding that the plain language of § 2422(b) clearly applies to those situations.

Hornaday’s related contention that if § 2422(b) covers his actions its

enactment exceeded Congress’ Commerce Power is meritless. He argues that

Congress lacks the authority to criminalize communications of a sexual predator

using an instrumentality or channel of interstate commerce to seek out child

victims, unless those communications are directly with the intended victims. See

Appellant’s Br. at 40 (“Finally, the Commerce Clause also requires that the

statutory language be read to criminalize only direct communications between the

defendant and the minor via the facility of interstate commerce (here, the

internet).”) (emphasis in original). There is no basis for that position.

For the legal premise of his conclusion Hornaday relies on a case which

does not support it to begin with and which in any event has been vacated pending

en banc review. United States v. Drury, 344 F.3d 1089 (11th Cir. 2003), rehearing

en banc granted and opinion vacated by 358 F.3d 1280 (11th Cir. 2004). The

internet is an instrumentality of interstate commerce. See United States v. Pipkins,

378 F.3d 1281, 1295 (11th Cir. 2004); United States v. Panfil, 338 F.3d 1299,

8
1300 (11th Cir. 2003). Congress clearly has the power to regulate the internet, as

it does other instrumentalities and channels of interstate commerce, and to prohibit

its use for harmful or immoral purposes regardless of whether those purposes

would have a primarily intrastate impact. See Heart of Atlanta Motel, Inc. v.

United States, 379 U.S. 241, 256, 85 S.Ct. 348, 356–57 (1964); Brooks v. United

States, 267 U.S. 432, 436, 45 S.Ct. 345, 346 (1925). The Commerce Clause power

is plenary. Riley v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 292 F.3d 1334,

1347 (11th Cir. 2002). Congress may reach and prohibit the use of a telephone or

the internet to set up the sexual abuse of children through intermediaries, just as it

may prohibit the use of those instrumentalities to set up a fraudulent scheme or to

arrange a contract murder. The communication does not have to be directly with

the victim.

We need not pause for long on account of Hornaday’s frivolous argument

that applying § 2422(b) to him is unconstitutional because it punishes him for

engaging in speech activities protected by the First Amendment. Speech

attempting to arrange the sexual abuse of children is no more constitutionally

protected than speech attempting to arrange any other type of crime.

To sum up our decision so far, the conduct that the evidence proved

Hornaday committed is prohibited by § 2422(b). A defendant properly may be

9
convicted and punished for that conduct. None of Hornaday’s contrary arguments

have any merit. The next question is whether he may be convicted pursuant to 18

U.S.C. § 2 when the only one with whom he acted is a government agent.

III.

The indictment under which he was convicted charged Hornaday with

violating “Title 18, United States Code, Section 2422(b) and Title 18, United

States Code, Section 2.” The latter statutory provision is the general punishment

as a principal provision, which states that:

(a) Whoever commits an offense against the United States or aids, abets,
counsels, commands, induces or procures its commission, is punishable as a
principal.

(b) Whoever willfully causes an act to be done which if directly performed
by him or another would be an offense against the United States, is
punishable as a principal.

18 U.S.C. § 2. Section 2 “does not establish a separate crime of aiding and

abetting, but rather an alternative charge that permits one to be found guilty as a

principal for aiding or procuring someone else to commit the offense.” United

States v. Martin, 747 F.2d 1404, 1407 (11th Cir. 1984) (internal marks and citation

omitted). A defendant can be properly convicted as a principal under § 2 even

when he has not personally “commit[ed] all the acts constituting the elements of

the substantive crime aided.” Id. at 1407. (He can also be convicted under that

10
provision when there is no mention of it in the indictment. Id.)

During trial in this case, the government asked that the jury be instructed on

liability under 18 U.S.C. § 2. Defense counsel objected. The government

acknowledged the settled case law that it takes two to conspire, and one of the two

cannot be an undercover agent. It nonetheless argued that under § 2 a defendant

can be held criminally responsible for conduct he aids and abets or causes an

undercover agent to commit even though the agent himself cannot be. Eventually

agreeing with that position, the court instructed the jury on 18 U.S.C. § 2 as a

theory of conviction,2 and the prosecutor argued that theory to the jury (although

without much force). The jury returned a general verdict convicting Hornaday as

2
The court gave the Eleventh Circuit pattern jury instructions on the subject:

The guilt of a Defendant in a criminal case may be proved without evidence that
the Defendant personally did every act involved in the commission of the crime charged.
The law recognizes that, ordinarily, anything a person can do for one’s self may also be
accomplished through direction of another person as an agent, or by acting together with,
or under the direction of, another person or persons in a joint effort.
So, if the acts or conduct of an agent, employee or other associate of the
Defendant are willfully directed or authorized by the Defendant, or if the Defendant aids
and abets another person by willfully joining together with that person in the commission
of a crime, then the law holds the Defendant responsible for the conduct of that other
person just as though the Defendant had personally engaged in such conduct.
However, before any Defendant can be held criminally responsible for the conduct
of others it is necessary that the Defendant willfully associate in some way with the
crime, and willfully participate in it. Mere presence at the scene of a crime and even
knowledge that a crime is being committed are not sufficient to establish that a Defendant
either directed or aided and abetted the crime. You must find beyond a reasonable doubt
that the Defendant was a willful participant and not merely a knowing spectator.
Eleventh Circuit Pattern Jury Instructions (Criminal), Special Instruction No. 7 (2003).

11
charged in the indictment.

Hornaday contends that the general verdict embraces the possibility of

conviction on an invalid legal theory: aiding and abetting an undercover agent

who could not himself be held responsible for the crime. Or to put it in terms of

one of our decisions, the argument is that there was no principal offense for

Hornaday to aid and abet because the government agent, lacking intent, never

committed a crime for the defendant to aid and abet. See United States v.

Edwards, 166 F.3d 1362, 1364 n.3 (11th Cir. 1999) (holding that the defendant’s

conviction for possession with intent to distribute drugs could not be sustained on

aiding and abetting grounds, because the defendant never possessed the drugs and

the government agent who did possess them never had the intent to distribute

them).

The problem with the holding in the Edwards footnote is that it ignores the

second subsection of 18 U.S.C. § 2, and it disregards prior precedent of this Court

that is consistent with that subsection and inconsistent with the Edwards holding.

It is plausible to read § 2(a) as including a requirement that someone other than the

defendant be guilty of the crime which the defendant aids and abets. Indeed, that

reading is the most plausible one in light of the subdivision language, which

makes punishable as a principal anyone who “aids, abets, counsels, commands,

12
induces, or procures” the commission of an offense.3 The argument that someone

else has to commit an offense for that particular statutory language to fit is a

forceful one.

The same cannot be said, however, about the language in the second

subsection. Section 2(b)’s language fits, and is obviously designed for, the

situation in which a defendant with the requisite intent to commit a crime gets

someone else to act in a way necessary to bring about the crime, even if that other

person is innocent. Or to put it another way, the defendant supplies the intent and

maybe another element or two while getting someone else to supply at least one

additional element that is necessary to the commission of the crime. That someone

else may be an undercover law enforcement officer or an entirely innocent third

person.

One of the oldest examples in our decisions of § 2(b) criminal liability

based upon the actions of innocent third parties is Pereira v. United States, 202

F.2d 830 (5th Cir. 1953).4 In that case we affirmed under § 2(b) the conviction for

3
We are not talking about the introductory clause of § 2(a), which makes anyone who
personally commits an offense punishable as a principal, an obvious truism. Instead, we are
talking about the clause that follows the “or” and describes the circumstances in which someone
who does not personally commit all of the elements of an offense can nonetheless be punishable
as a principal under that provision.
4
Decisions of the Fifth Circuit handed down prior to the close of business on September
30, 1981, are binding in this circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.

13
transporting in interstate commerce a security which the defendant knew had been

fraudulently obtained, even though the actual transportation (mailing) of the

security was done by an innocent bank at the defendant’s request. Id. at 836–37.

Another example is United States v. Walser, 3 F.3d 380, 387–89 (11th Cir. 1993),

in which the defendant got another person to give testimony under oath that the

defendant knew was false but the testifier did not. We sustained the defendant’s

conviction for perjury even though she never gave any testimony herself. Id.

Both the Pereira and Walser decisions preceded Edwards and trump its holding

that there can be no criminal liability where one of the necessary elements is

performed by a party that lacks the intent to commit the crime. See Cohen v.

Office Depot, Inc., 204 F.3d 1069, 1072 (11th Cir. 2000); Tompkins v. Moore,

193 F.3d 1327, 1331 (11th Cir. 1999); United States v. Steele, 147 F.3d 1316,

1318 (11th Cir. 1998) (en banc).

It is true that Pereira and Walser were not undercover agent cases, but we

have applied the same principles to impose liability under 18 U.S.C. § 2(b) in

those types of cases. One case upon which the government places heavy reliance

is United States v. Delgado, 56 F.3d 1357 (11th Cir. 1995), where we affirmed a

conviction for importing illegal drugs into the United States in violation of 21

1981) (en banc).

14
U.S.C. § 952(a) and 18 U.S.C. § 2, even though those who actually brought the

drugs into this country at the behest of the defendant were undercover DEA

agents, id. at 1362–63, 1366–67. The agents’ act of importing the drugs could be

written up against the defendant under the aiding and abetting doctrine, we

explained, so long as the defendant had a proprietary interest in the drugs. Id. at

1366. We said that the defendant’s proprietary interest in that case was evidenced

by the fact that he took possession of the drugs from the DEA agents. Id. at 1367.

For support of the legal component of our holding on that issue we cited a number

of other decisions upholding drug-related convictions on an 18 U.S.C. § 2 theory

where some of the necessary conduct, the importation or transportation of the

drugs, that the defendants had procured or aided was actually done by government

agents: Haynes v. United States, 319 F.2d 620 (5th Cir. 1963); United States v.

Meinster, 619 F.2d 1041 (4th Cir. 1980); United States v. Gould, 419 F.2d 825

(9th Cir. 1969); United States v. Mercer, 18 M.J. 644 (A.F.C.M.R. 1984).

None of the opinions cited in Delgado are especially helpful in their

discussion of the 18 U.S.C. § 2 issue, and the only one that mentions the

proprietary interest standard is Mercer, which does not attempt to justify adopting

it, see 18 M.J. at 645 (reversing a conviction for bringing drugs onto a military

installation because “[t]he drugs were the sole property of the agent and the

15
accused had no proprietary interest in them”). The proprietary interest standard,

which Delgado read into § 2, is a requirement that is troublesome in theory and

inadequate in application. It is troublesome in theory both because the law does

not recognize an enforceable proprietary or other legal interest in contraband, and

because dividing contraband cases along the lines of who “owns” the drugs does

not separate them in a way that parallels the purposes or parameters of § 2

liability. It is inadequate in practice because it makes no sense in non-contraband

cases. For example, one can certainly aid and abet a violent crime without having

a proprietary interest in it.

We leave it to a future panel to decide whether the proprietary interest

language in the Delgado decision is dicta or, if it is a holding, whether it is

contrary to prior panel precedent. It is enough for present purposes to conclude, as

we do, that there is no proprietary interest requirement for application of § 2(a) or

(b) in non-contraband cases. That said, Delgado does illustrate that a defendant

can be held liable under § 2(b) for the acts of an undercover agent which he causes

where those acts would be an offense against the United States if the defendant

had done the acts himself. See also Haynes, 319 F.2d at 621–22.

That brings the government’s argument along, but does not bring it home.

The problem for the government is that Hornaday did not “aid, abet, counsel,

16
command, induce, or procure,” 18 U.S.C. § 2(a) (tense changed), Detective

Spector, acting as “Wayne,” to commit an offense against the United States. Nor

did the detective commit any acts that, “if directly performed by [Hornaday] or

another would have been an offense against the United States,” § 2(b), and more

specifically the offense for which Hornaday was convicted. This is not an illegal

drug case. It is not a case in which the movement of contraband was an element of

the offense and the defendant brought it about through government agents. It is

not a case in which government agents engaged in conduct that would have been

criminal if done by someone who was not part of law enforcement. None of

Detective Spector’s acts supply any element of the 18 U.S.C. § 2422(b) crime for

which Hornaday was convicted. The children the detective offered Hornaday did

not exist. The circumstances on the detective’s end of the internet and telephone

are not ones in which make believe is a federal crime – it is not a federal crime for

someone to pretend to be offering up children to a sexual predator.

The only federal crime the evidence showed is the one committed by

Hornaday, and that is the 18 U.S.C. § 2422(b) crime of using a facility of interstate

commerce in an attempt to sexually abuse children (the Murrell decision having

established that employing those means in an attempt to abuse children who turn

out not to exist is a crime). The jury should not have been instructed on an 18

17
U.S.C. § 2 liability theory, and the government should not have argued that theory

to the jury.

IV.

The remaining question is whether improperly putting the 18 U.S.C. § 2

liability theory before the jury in this case was harmless error. The best case for

Hornaday’s position that it was not harmless error is United States v. Martin, 747

F.2d 1404 (11th Cir. 1984). William Martin tried to recruit two of his employees

to assist him in planting illegal drugs in the automobile of an IRS auditor, which

Martin hoped would discredit the official and thereby obstruct an ongoing audit of

his business. Id. at 1405–06. Both employees refused to assist in the criminal

plan, and in the end only Martin did anything to further the plan. Id. at 1406. He

was indicted on three counts, the first two of which explicitly charged 18 U.S.C. §

2 along with the substantive crimes. Count I charged Martin with attempting to

possess with intent to distribute marijuana and cocaine in violation of 21 U.S.C.

§§ 841(a)(1) and 846, and 18 U.S.C. § 2. Id. at 1405–06. Count II charged him

with endeavoring to intimidate and impede the IRS auditor in violation of 26

U.S.C. § 7212(a) and 18 U.S.C. § 2. Id. at 1406. The jury was instructed that it

could convict Martin of those two counts as a principal using 18 U.S.C. § 2

principles, and it returned a general verdict of guilty on each of them (and on

18
another count not relevant to this discussion). Id. at 1407–08.

This Court reversed Martin’s convictions on the two counts, because the

guilty verdict might have been based on a theory of 18 U.S.C. § 2 liability, which

could not be justified in the circumstances of that case. Id. at 1408. While our

opinion makes a persuasive case for the existence of error in that case, its

explanation of why the error was not harmless is anything but persuasive. We said

that the jury “may have” concluded Martin’s actions did not go far enough beyond

preparation to convict him as a principal for the crimes, and the jury “may have”

turned to aiding and abetting. Id. If it did, we said, “[w]e cannot exclude the

possibility that the jury convicted Martin of offenses alleged improperly, not cured

by the jury instructions, and not supported by the evidence.” Id. In other words,

we piled several layers of speculation on top of each other to arrive at the

conclusion that the jury may have found the strong evidence against Martin

unconvincing and convicted him instead because he procured or aided and abetted

acts of his two employees – acts which it was undisputed never happened. The

illogic of that reasoning springs from the page: The reason it was error to let the

jury consider 18 U.S.C. § 2 principles in the Martin case is that there was no

evidence at all that the two employees committed any acts that furthered the crime,

yet the reason it was thought harmful is that the jury may have been convinced

19
beyond a reasonable doubt by the evidence that the employees did commit such

acts.

The legal error in the Martin panel’s reasoning is also obvious. It did not

purport to apply the governing standard set down by the Supreme Court nearly

forty years before in Kotteakos v. United States, 328 U.S. 750, 66 S. Ct. 1239

(1946). There the Court held that non-constitutional error is harmless if, viewing

the proceedings in their entirety, id. at 762, 66 S. Ct. at 1246, a court determines

that the error did not affect the verdict, “or had but very slight effect,” id. at 764,

66 S. Ct. at 1248. If one can say “with fair assurance . . . that the judgment was

not substantially swayed by the error,” the judgment is due to be affirmed even

though there was error. Id.

The Kotteakos harmless error standard was explicitly followed in many

decisions of this Court (in the form of its predecessor court) that preceded the

Martin decision. See e.g., United States v. Herzberg, 558 F.2d 1219, 1224 (5th

Cir. 1977) (“Reviewing the case from the perspective provided in Kotteakos[] we

stand convinced that the judgment was not substantially swayed by the error, and

that the error had but slight effect on the jury. The evidence of guilt here is

overwhelming.” (internal citations omitted)); United States v. Constant, 501 F.2d

1284, 1289 (5th Cir. 1974) (affirming under the Kotteakos standard, even though

20
the error was “of a type that has the potential for great prejudice,” because there

was overwhelming evidence of guilt); United States v. Arias-Diaz, 497 F.2d 165,

171–72 (5th Cir. 1974) (applying “the traditional standard” of non-constitutional

harmless error from Kotteakos to conclude that any error was not reversible

because the evidence against the defendants was overwhelming); United States v.

McKinley, 493 F.2d 547, 552 (5th Cir. 1974) (applying Kotteakos to conclude that

the error “did not have a ‘substantial influence’ on the jury”); United States v.

Resnick, 488 F.2d 1165, 1168 (5th Cir. 1974) (quoting the Kotteakos test and

applying it to conclude that the substantial rights of the defendant were not

affected); Addison v. United States, 317 F.2d 808, 816–17 (5th Cir. 1963) (stating

that “the Supreme Court has pointed out in Kotteakos[] that in criminal cases the

question is what effect the error had or reasonably may be taken to have had upon

the decision of the jury,” (quoting Ahlstedt v. United States, 315 F.2d 62, 66 (5th

Cir. 1963) and affirming because the errors “did not affect the substantial rights of

the parties”).

Where there is a conflict between a prior panel decision and those that came

before it, we must follow the earlier ones. Cohen v. Office Depot, Inc., 204 F.3d

1069, 1072 (11th Cir. 2000); Tompkins v. Moore, 193 F.3d 1327, 1331 (11th Cir.

1999); United States v. Steele, 147 F.3d 1316, 1318 (11th Cir. 1998) (en banc).

21
We must apply the Kotteakos standard of non-constitutional error harmlessness. It

is easy to do so in this case. The evidence of guilt was overwhelming, as much or

more so than it was in the prior cases of Herzberg, Constant, and Arias-Diaz, in all

of which we held that the conviction should not be reversed because the error did

not adversely affect the substantial rights of the defendant.

In this case, the evidence of guilt was not just overwhelming, as our earlier

recitation of it shows, but also essentially undisputed. While Hornaday did not

concede his guilt, neither did he actually deny, much less put on evidence to

dispute, the fact that he sent the internet messages and photographs that were

presented to the jury, or that he spoke the words over the telephone which the jury

heard. Those messages, photographs, and recorded telephone conversations

together establish every element of the crime several times over. There was

abundant evidence, all pointing in the same direction, towards Hornaday’s use of

the internet in an attempt to arrange the sexual abuse of two children.

In the words of Kotteakos, we can “say, with fair assurance, after pondering

all that happened without stripping the erroneous action from the whole, that the

judgment was not substantially swayed by the error,” and therefore “substantial

rights were not affected.” 328 U.S. at 765, 66 S. Ct. at 1248. We are confident

“that the error did not influence the jury,” id. at 764, 66 S. Ct. at 1248, because we

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are confident that after seeing and hearing all of the evidence in this case no

reasonable jury would have been influenced by a jury instruction and prosecutorial

argument on liability under 18 U.S.C. § 2. See United States v. Glasser, 773 F.2d

1553, 1557–58 (11th Cir. 1985) (including 18 U.S.C. § 2 in every count of the

indictment, and instructing the jury on it, was harmless error where the defendant

was the only person who engaged in the criminal activity).

AFFIRMED.

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