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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-11601
Non-Argument Calendar
________________________
D.C. Docket No. 0:10-cr-60095-JAG-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellee
versus
GEORGE JOSEPH ENGLAND,
a.k.a. Stephen Arthur Seagoe,
llllllllllllllllllllllllllllllllllllllll Defendant - Appellant
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 15, 2012)
Before TJOFLAT, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
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George Joseph England appeals his convictions for inducement and
transportation, both internationally and interstate, of a female minor for illegal
sexual activity. England was charged and convicted on five counts in violation of
18 U.S.C. §§ 2421, 2422 (1971), and 18 U.S.C. § 2423 (1970) following a jury
trial. On appeal, England argues that: (1) the evidence was insufficient to convict
him under 18 U.S.C. § 2422 (1971) and 18 U.S.C. § 2423 (1970); (2) the district
court erred by not giving proper jury instructions; (3) two charges, 18 U.S.C. §
2422 (1971) and 18 U.S.C. § 2423 (1970), were multiplicitous; and (4) the district
court erred by not granting a mistrial to allow the parties to determine the
reliability of the victim’s “recovered memories.” After review, we affirm.
I.
In the early 1970s, England visited a young girl, J.S., and her family at their
home in Vietnam. He began buying dolls, dresses, and candy for J.S and
encouraged her to spend the night at his apartment. England sexually molested
J.S. whenever she would spend the night. She was three or four years old at the
time. Eventually, England took J.S. from her family, moved to Saigon and then to
Thailand where the molestation continued. After spending a year in Thailand,
England and J.S. moved to India and lived in a hotel. During their time in India,
J.S. witnessed England sexually molest a young girl that she befriended while they
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were camping at the beach. When J.S. was five years old, they moved to
California where they lived in a garage apartment. J.S. testified that over the next
thirteen years, England continued to sexually molest her, forced her to engage in
bestiality, and impregnated her on multiple occasions. In October 1977, England
was convicted of sexually molesting two other young girls in California. Shortly
thereafter, J.S. and England fled to Florida. When J.S. was twelve or thirteen
years old, they moved into a “flea-ridden” trailer where she was forced to cook,
clean, and financially support England. Around this time, J.S. also gave birth.
DNA testing showed 99.99% probability that England was the father of the baby.
After this, England forced J.S. to undergo an abortion each time he impregnated
her, which happened at least five times. J.S. testified that the space shuttle,
Challenger, exploded on the same day, January 28, 1986, of her last abortion; she
was eighteen years old. Following her last abortion, J.S. threatened to commit
suicide if England ever touched her again. The abuse stopped after J.S.’s threat,
and she moved out of England’s home a few years later.
II.
“We review the sufficiency of the evidence supporting a criminal conviction
de novo.” United States v. Frank, 599 F.3d 1221, 1233 (11th Cir. 2010). We ask
whether, “after viewing the evidence in light most favorable to the prosecution,
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any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Miranda, 666 F.3d 1280, 1282 (11th
Cir. 2012) (per curiam) (quotation marks omitted), cert. denied, 132 S. Ct. 2412
(2012). As such, we will not disturb a guilty verdict “unless no trier of fact could
have found guilt beyond a reasonable doubt.” United States v. Yost, 479 F.3d 815,
818–19 (11th Cir. 2007) (per curiam) (quotation marks omitted). Whether the
evidence is direct or circumstantial, we accept all reasonable inferences that tend
to support the government’s case. United States v. Williams, 390 F.3d 1319, 1324
(11th Cir. 2004).
First, England asserts that there was insufficient evidence to find that J.S.
was transported via common carrier, an essential element for conviction under 18
U.S.C. § 2422 (1971).1 England argues that the government presented no
evidence that they traveled on a commercial airplane and that a private plane could
have been used to transport them. The government responds that circumstantial
1
The version of 18 U.S.C. § 2422 pursuant to which England was charged reads:
Whoever knowingly persuades, induces, entices, or coerces any woman
or girl to go from one place to another in interstate or foreign commerce
. . . and to be carried or transported as a passenger upon the line or route
of any common carrier or carriers in interstate or foreign commerce . . .
shall not be fined more than $5,000 or imprisoned not more than five
years, or both.
18 U.S.C. § 2422 (1971) (emphasis added).
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evidence adequately demonstrates that England transported J.S. via a common
carrier. England’s living arrangements over the years—a one-bedroom apartment
with little furniture, cheap motel rooms, an apartment in a garage, a flea-ridden
trailer, and an efficiency—indicate that he did not have enough money to charter a
private flight. England responds that the inference is too speculative and his lack
of financial resources make it more likely that he flew on a private plane gratis
rather than pay for a commercial flight.
Based on the evidence, the jury could properly infer that it was unlikely that
England either paid for or was given a private plane ride. There was no evidence
that England had well-connected friends in India with the resources to offer him a
free intercontinental flight. The jury’s conclusion is a reasonable interpretation of
the evidence in light of England’s financial situation and the limited options
available for traveling from India to the United States during the 1970s. Thus, we
conclude that there was sufficient evidence for a jury to find that J.S. was brought
to the United States via a common carrier.
Additionally, England argues that there is insufficient evidence that he
violated the pre-amendment version of 18 U.S.C. § 2423. Prior to February 6,
1978, § 2423 made it illegal to “knowingly persuade, induce, entice, or coerce a
woman or girl to go from one place to another by common carrier, in interstate
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commerce . . . with the intent that she be induced or coerced to engage in . . .
debauchery or other immoral practice.” 18 U.S.C. § 2423 (1970). On February 6,
1978, the statute was amended and required the defendant to know that the
prohibited sexual conduct would be “commercially exploited.” See Pub. L. No.
95-225 § 3, 92 Stat. 7 (1978). England was charged with the pre-amendment
version of the statute. England contends that because a Florida school record
shows J.S.’s enrollment date as February 14, 1978, the inducement and interstate
transport could have occurred after February 6, and therefore, he could not be
convicted under 18 U.S.C. § 2423 (1970).
Upon review, we find sufficient evidence for a reasonable juror to conclude
that the inducement and travel occurred before February 6, 1978. J.S. testified that
they left California before Christmas in 1977, and the trip to Florida took between
four and five days. Even though records from a Florida elementary school show
an enrollment date of February 14, 1978, J.S. testified that she attended one or two
other schools in Florida prior to that date. Further, England skipped a sentencing
hearing in California in December 1977. Consequently, a warrant was issued for
his arrest. For the next twenty-eight years, England eluded his arrest by fleeing to
Florida and assuming a new name. A reasonable juror could conclude that he
would not have stayed in California for two months with a warrant out for his
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arrest. Viewing all reasonable inferences in favor of the government, sufficient
evidence supports England’s conviction under the pre-amendment version of §
2423.
III.
Next, we address England’s argument that the district court failed to give
proper instructions to convict him under § 2423 (1970). England maintains that
the district court should have instructed the jury that it needed to find that the
inducement for interstate travel occurred prior to February 6, 1978, in order to
convict him under § 2423 (1970). The government argues that any error in the
instructions was harmless, and when viewed in light of the entire trial, the
instruction was not so misleading as to make the trial unfair.
“Generally, the district courts have broad discretion in formulating jury
instructions provided that the charge as a whole accurately reflects the law and the
facts.” United States v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000) (quotation
marks omitted). “A district court’s failure to instruct a jury on all of the statutory
elements of an offense is subject to harmless-error analysis.” United States v.
Gomez, 580 F.3d 1229, 1233 (11th Cir. 2009). For a harmless error analysis, we
should “conduct a thorough examination of the record.” Neder v. United States,
527 U.S. 1, 19, 119 S. Ct. 1827, 1838 (1999). If after our review we “cannot
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conclude beyond a reasonable doubt that the jury verdict would have been the
same absent the error—for example, where the defendant contested the omitted
element and raised evidence sufficient to support a contrary finding—[we] should
not find the error harmless.” Id. Our review is limited to “ask[ing] whether the
record contains evidence that could rationally lead to a contrary finding with
respect to the omitted element.” Id. at 19, 119 S. Ct. at 1839.
Assuming that the district court’s failure to instruct on the date was error, it
was harmless. As discussed previously, no evidence undermines J.S.’s testimony
that they arrived in Florida prior to February 6, 1978. The school record from
February 14, 1978 is insufficient to support a contrary finding, as it merely
confirms that J.S. and England were in Florida on that date. It does not, on its
own, support a finding that their interstate travel occurred after February 6, 1978.
Thus, after thorough review of the record, we find any potential instructional error
by the district court to be harmless.
IV.
We now address England’s assertion that the government must dismiss one
of the charges because 18 U.S.C. §§ 2422 (1971) and 2423 (1970) are
multiplicitous. England contends that the two statutes require essentially the same
elements for conviction and therefore violate double jeopardy principles. The
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government maintains that these statutes require different elements and therefore
are not multiplicitous.
“An indictment is multiplicitous if it charges a single offense in more than
one count.” United States v. Sirang, 70 F.3d 588, 595 (11th Cir. 1995) (quotation
marks omitted). The test for multiplicity is whether each provision requires proof
of a fact which the other does not. See Blockburger v. United States, 284 U.S.
299, 304, 52 S. Ct. 180, 182 (1932). We have held that charges are not
multiplicitous where they differ by a single element or fact. United States v.
Costa, 947 F.2d 919, 926 (11th Cir. 1991).
England’s convictions under 18 U.S.C. §§ 2422 (1971) and 2423 (1970) are
not multiplicitous. Notably, both statutes contain several elements that are
identical. 18 U.S.C. §§ 2422 (1971), 2423 (1970). Section 2422, however,
requires that the victim is actually “carried or transported as a passenger upon the
line or route of any common carrier.” 18 U.S.C. § 2422 (1971). Section 2423
merely requires that the defendant enticed the victim to go from one place to
another; it does not require actual transportation of the victim. 18 U.S.C. § 2422
(1971). Moreover, 18 U.S.C. § 2423 requires the victim to be a “woman or girl
who has not attained her eighteenth birthday.” There is no age requirement to
convict a defendant under § 2422; rather, the victim can be “any woman or girl.”
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18 U.S.C. § 2422 (1970). Because the statutes differ by these elements, they are
not multiplicitous. See Costa, 947 F.2d at 926.
V.
Lastly, England argues that the district court should not have denied his
motions for a mistrial and a new trial because J.S. indicated that her testimony was
based on “recovered memories,” which he contends is unreliable. England argues
that he should have had an adequate opportunity to investigate how much of J.S.’s
testimony was based on recovered memory. The government responds that
England’s testimony was not based on recovered memory. Further, England had
an opportunity to uncover more information regarding her therapy during J.S.’s
cross-examination and chose not to do so.2
A district court’s refusal to grant a mistrial is reviewed for abuse of
discretion. United States v. Newsome, 475 F.3d 1221, 1227 (11th Cir. 2007) (per
curiam). “A trial judge has discretion to grant a mistrial since he [or she] is in the
best position to evaluate the prejudicial effect of a statement or evidence on the
jury.” Id. (citation omitted). To reverse a district court’s denial of a mistrial, a
2
We find no merit in England’s argument that his Sixth Amendment confrontation rights
were violated. The district court placed no restrictions on his cross-examination of J.S., and he
was aware of the corroborating documentation and evidence that the government would present
to make its case. Therefore, he had adequate opportunity to confront his accusers, as well as the
witnesses against him.
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defendant must demonstrate substantial prejudice. United States v. Chastain, 198
F.3d 1338, 1352 (11th Cir. 1999).
After review, we agree with the government that the evidence at trial does
not demonstrate that J.S.’s testimony was recovered. J.S. testified that her
therapist did not help her remember any of the major details in her testimony.
Rather, her therapist helped “bring [only minor details] to light,” such as the name
of a town in California and the age of her last abortion. England’s argument relies
only on two answers that J.S. gave to defense counsel in response to questions that
were immaterial to his conviction. Therefore, based on J.S.’s explicit rejection
that her therapist helped her remember any significant details, and a lack of
evidence that J.S.’s therapist engaged in recovered memory techniques, this case
does not appear to even involve recovered memory.3 Accordingly, the district
court did not abuse its discretion in denying his motions to explore “recovered
memory” because it was not present.
For the forgoing reasons, we affirm England’s conviction.
AFFIRMED.
3
Because no recovered memory is involved here, we decline England’s invitation to rule
on the broader unresolved issues of its admissibility in this circuit.
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