[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAR 23, 2009
THOMAS K. KAHN
No. 07-12179
CLERK
________________________
D. C. Docket No. 06-00456-CR-5-SLB-HGD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WALTER E. BRANNAN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(March 23, 2009)
Before MARCUS, KRAVITCH and ANDERSON, Circuit Judges.
MARCUS, Circuit Judge:
Walter Brannan appeals his convictions for the Alabama state law offenses
of indecent exposure and public lewdness while in the Wheeler National Wildlife
Refuge, an area under the jurisdiction of the United States, all in violation of 50
C.F.R. § 27.83 and 16 U.S.C. § 668dd. On appeal, Brannan challenges his
conviction for indecent exposure on the grounds that the charging information was
faulty because it left out an essential element of the crime, and, more generally, he
challenges both convictions on the grounds that the district court abused its
discretion by admitting evidence of Brannan’s other similar acts under Fed. R.
Evid. 404(b). After thorough review, we affirm.
I.
The relevant facts and procedural history are these. The Wheeler National
Wildlife Refuge is a federal property located in Alabama that is open to the
general public. In the summer of 2006, Federal Wildlife Officers conducted a
covert operation to identify and charge any individuals engaged in illegal sexual
activity in the park, pursuant to 16 U.S.C. § 668dd and 50 C.F.R. § 27.83.1 Based
upon conduct that occurred on July 20, 2006 during a walk in the Wildlife Refuge,
Brannan was charged with two Alabama state law violations on a federal
reservation: Count One alleged indecent exposure and Count Two public
1
Under 16 U.S.C. § 668dd, the U.S. Fish and Wildlife Service may administer the
National Wildlife Refuge lands and waters “for the benefit of present and future generations of
Americans.” 16 U.S.C. § 668dd(2). Pursuant to this authority, the Secretary of the Interior
promulgated regulations for the Wildlife Refuge lands, including 50 C.F.R. § 27.83, which
prohibits visitors from engaging in acts of “indecency or disorderly conduct as defined by State
or local laws ... on any national wildlife refuge.” 50 C.F.R. § 27.83
2
lewdness.2 On the morning of trial, before voir dire had commenced, Brannan
raised an issue for the first time regarding the sufficiency of Count One (indecent
exposure). Brannan argued that although the Alabama indecent exposure statute
did not mention consent, a later provision of Alabama law incorporated the
victim’s lack of consent as an essential element into all crimes arising under the
same article.
2
The charging instrument, an information filed by the United States Attorney read this
way:
COUNT ONE: [50 CFR 27.83 and Title 16 U.S.C. 668dd]
The United States Attorney charges:
That on or about July 20, 2006, in Limestone County, within the Northern District
of Alabama, the defendant,
WALTER E. BRANNAN,
while on land acquired for the use of the United States and under the concurrent
jurisdiction thereof, that is, the Wheeler National Wildlife Refuge, did knowingly
commit the crime of indecent exposure, in that the defendant, with intent to arouse
and gratify sexual desires of himself and of a person other than his spouse, did
expose his genitals under circumstances in which he knew his conduct was likely
to cause affront and alarm in a public place, in violation of 50 C.F.R. 27.83 and
Title 16, United States Code, Section 668dd.
COUNT TWO: [50 CFR 27.83 and Title 16 U.S.C. 668dd]
The United States Attorney charges:
That on or about July 20, 2006, in Limestone County, within the Northern District
of Alabama, the defendant,
WALTER E. BRANNAN,
while on land acquired for the use of the United States and under the concurrent
jurisdiction thereof, that is, the Wheeler National Wildlife Refuge, did knowingly
commit the crime of public lewdness, in that the defendant did expose his genitals
in a public place and was reckless about whether another would be present who
would be offended and alarmed by his act, in violation of 50 C.F.R. 27.83 and
Title 16, United States Code, Section 668dd.
3
Specifically, Title 13A, Article 6 of the Alabama Criminal Code at
§ 13A-6-68, provides that:
A person commits the crime of indecent exposure if, with intent to
arouse or gratify sexual desire of himself or of any person other than his
spouse, he exposes his genitals under circumstances in which he knows
his conduct is likely to cause affront or alarm in any public place or on
the private premises of another or so near thereto as to be seen from such
private premises.
Ala. Code § 13A-6-68. The later provision, § 13A-6-70, in turn says that:
Whether or not specifically stated, it is an element of every offense
defined in this article ... that the sexual act was committed without
consent of the victim.
Ala. Code § 13A-6-70. Because Count One did not include this element of non-
consent, Brannan argued that the count for indecent exposure was defective.
Notably, however, Brannan said that he was not asking the Government to refile
an information alleging the missing element, nor that he was trying to delay the
trial, but that he would agree to an amendment to the Count. No such amendment
was made.
The colloquy between defense counsel and the district court included the
following exchange:
Mr. Gardner: And it’s not charged in the information. That
element is not in the information, and I told David
[Estes, Prosecutor].
4
The Court: I see what you’re saying. It wasn’t properly charged.
Mr. Gardner: And I’m not trying to dodge a trial today. In fact, I
would agree to an amendment that would include
that, but I do think it clearly states here it’s an
element.
The Court: So you’re not asking them to supercede or to refile --
it’s not an indictment -- but to refile an information
alleging that element?
Mr. Gardner: No, I’m not.
The Court: I will look at it, and we will talk at the charge
conference. I don’t want to say right now, unless
you already know that you agree to it.
R2 at 7-8 (emphasis added).
After the voir examination was completed and the jury was impaneled and
sworn but before opening statements commenced, the district court conducted a
preliminary charging conference with counsel, at which time Brannan again raised
the issue of consent. The following exchange occurred between the prosecutor
(Mr. Estes), defense counsel (Mr. Gardner), and the district court:
Mr. Estes: I have two arguments. I think, first, to frame your
argument and make sure I understand it, he’s saying
because I did not allege it in the information, there’s
a problem?
The Court: No. He’s saying he’s going to waive that for sure.
He’s going to waive that; right? Were you saying
that? I’m not trying to put words in your mouth.
5
Mr. Gardner: I just say it’s an element. I’m not going to ask for it
to be dismissed or us not to proceed today.
R2, at 24-25 (emphasis added).
After a brief recess, the preliminary charging conference resumed, at which
time the district court determined that it would not include in its jury instructions
the victim’s lack of consent as an element of Count One. At that point, the court
asked whether either party had anything else to address. Defense counsel said,
“No.” Trial commenced shortly thereafter. Notably, at no time before or during
trial did the defendant move to either dismiss the charging information on the
ground that the charge omitted an essential element, or seek a continuance to give
the prosecution an opportunity to change the charging instrument.
The Government presented at trial, among others, the testimony of Darron
Speegle, who was a Federal Wildlife Officer assigned to the Wheeler National
Wildlife Refuge. He explained that in July of 2006 citizens essentially were
deprived access to certain areas within the Wildlife Refuge “because of illegal
deviant sexual activity.” In order to address this problem, the Officer asked for the
assistance of other Federal Wildlife Officers to conduct a covert operation to
surveil, identify, and charge any individuals who may be engaged in illegal
conduct.
6
One of the participating officers, Greg Blanks, was assigned to act in a non-
uniformed capacity as a member of the public, walking the trails and sitting on the
park benches. Blanks testified that on July 26, 2006, he encountered the defendant
Brannan, who initially walked by Blanks as Blanks sat on a bench. Soon
thereafter, according to the Officer, Brannan returned, approached Blanks, and
said hello. Brannan told Blanks that he (Brannan) had spent the morning having
sex with a friend and had taken photographs. Then the defendant, who stood two
feet in front of Blanks, began to rub his groin area, exposed his erect penis, began
to masturbate, and asked the Officer if he wanted to engage in sex. The Officer
testified that he then identified himself as a federal officer, took the defendant to a
processing area, and issued a citation to Brannan. Officer Blanks unambiguously
testified that at no time did he ask the defendant to expose himself or otherwise
solicit Brannan in any way.
At the close of the Government's case-in-chief, Brannan moved for
judgment of acquittal on Count One (indecent exposure) arguing that it did not
allege a necessary element: that the act was committed without the consent of the
victim. The district court denied the motion, concluding that the Government was
not required to prove that the victim did not give consent. No further motions
were made.
7
The court then initiated still another preliminary discussion with counsel
concerning the proposed jury charge. Brannan objected to the instructions
concerning indecent exposure because they did not address the matter of the
victim’s consent. The district court did not rule on the objection at the time. The
defense then proceeded to present evidence of its own. In his defense, Brannan
testified that he was at the Wildlife Refuge to exercise and take pictures of nature,
and that Officer Blanks initiated a conversation with him and asked Brannan
several times to expose himself, which the defendant said he did only after having
been asked to do so three times by the Officer.
Based on Brannan’s testimony, the Government sought permission to
question Brannan about his familiarity with the Wildlife Refuge and whether on
four or five occasions he had previously visited the Wildlife Refuge with the intent
of engaging in causal sex. The prosecution argued that this inquiry rebutted
Brannan’s testimony that he had only exposed himself at Blanks’ request and that
it showed predisposition. After hearing the proffer out of the presence of the jury,
the district court, over the defendant’s objection, allowed the cross examination.
The Government elicited from Brannan that, before the incident with Officer
Blanks, he was aware that the Wildlife Refuge was a place to go to have casual
8
sex, and that on four or five previous occasions he had engaged in sexual conduct
at the Wildlife Refuge.
At the close of the case, Brannan did not renew his motion for judgment of
acquittal.
During a final charging conference, neither side objected to the court’s
proposed jury instructions, which included a modified instruction on entrapment.3
Notably absent were any instructions on consent. Nor did Brannan raise any
further objection to the charging document. The jury convicted the defendant on
both counts. Thereafter, Brannan was sentenced to 45 days incarceration on each
count to run concurrently.
This timely appeal ensued.
II.
3
The trial court's final jury charge included a modified instruction on entrapment with
which defense counsel explicitly agreed.
The Court: If you find on either or both of the counts -- how about
this? If you find on either or both of the court that the
government has proved the defendant guilty beyond a
reasonable doubt, then you need to consider whether the
defendant is entitled to the defense of entrapment, and then
I would read the entrapment charge.
Mr. Gardner: Okay.
R3 at 51.
9
We review the sufficiency of a charging instrument de novo. United States
v. Pendergraft, 297 F.3d 1198, 1204 (11th Cir. 2002). The charging document,
whether an information or grand jury indictment, “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. Bobo, 344 F.3d 1076, 1083 (11th
Cir. 2003)(quotation and brackets omitted). When an indictment defectively omits
an essential element, the ensuing conviction must be reversed. See id. at 1085-86;
United States v. Adkinson, 135 F.3d 1363, 1378 (11th Cir. 1998); United States v.
Gayle, 967 F.2d 483, 485 (11th Cir. 1992); United States v. Italiano, 837 F.2d
1480, 1482 (11th Cir. 1988). We are precluded, however, from reviewing an issue
raised on appeal if it has been waived through the doctrine of invited error. United
States v. Love, 449 F.3d 1154, 1157 (11th Cir. 2006); United States v. Silvestri,
409 F.3d 1311, 1337 (11th Cir. 2005); Ford ex. rel. Estate of Ford v. Garcia, 289
F.3d 1283, 1293-94 (11th Cir. 2002), cert. denied, 537 U.S. 1147 (2003).
Moreover, we review the evidentiary rulings of the trial court only for a clear
abuse of discretion. United States v. Novaton, 271 F.3d 968, 1005 (11th Cir.
2001). And when we employ the deferential abuse-of-discretion standard “we
must affirm unless we find that the district court has made a clear error of
10
judgment, or has applied the wrong legal standard.” United States v. Frazier, 387
F.3d 1244, 1259 (11th Cir.2004) (en banc) (citation omitted).
A.
In the Eleventh Circuit, “[t]he doctrine of invited error is implicated when a
party induces or invites the district court into making an error.” United States v.
Stone, 139 F.3d 822, 838 (11th Cir. 1998). “Where a party invites error, the Court
is precluded from reviewing that error on appeal.” United States v. Harris, 443
F.3d 822, 823-24 (11th Cir. 2006); Silvestri, 409 F.3d at 1337; Ford, 289 F.3d at
1294. Thus, if a party waives a procedural right or agrees to the admissibility of
certain evidence, he cannot later complain that any resulting error is reversible.
See Harris, 443 F.3d at 824 (“The fact remains that [defendant’s] counsel waived
the PSI and that waiver invited any error that may have arisen here. Accordingly,
there is no reversible error.”); United States v. Jernigan, 341 F.3d 1273, 1289-90
(11th Cir. 2003) (holding that defendant invited error by agreeing to allow tape-
recorded statement into evidence; court cannot review the impropriety of jury
hearing the tape); Love, 449 F.3d at 1157 (holding that defendant invited error by
expressly acknowledging that the court could impose a sentence of supervised
release; precluded from claiming resulting sentence was in error); United States v.
Parikh, 858 F.2d 688, 695 (11th Cir. 1988) (holding defense counsel invited error
11
when he asked government witness to relay hearsay); United States v. Trujillo,
714 F.2d 102, 105 (11th Cir. 1983) (holding defense counsel invited error when he
told jury that the indictment was insufficient; cannot appeal impropriety of
prosecutor’s responding comment).
The doctrine stems from the common sense view that where a party invites
the trial court to commit error, he cannot later cry foul on appeal. Stone, 139 F.3d
at 838 (“Generally, an appellate court will not review an error invited by a
defendant, on the rationale that the defendant should not benefit from introducing
error at trial with the intention of creating grounds for reversal on appeal.”).
After thoroughly reviewing this record we are constrained to conclude that
Brannan affirmatively waived his right to challenge the charging document on
appeal because he encouraged the district court to proceed to trial on the allegedly
faulty count. Indeed, the defendant had multiple opportunities to correct the
perceived error. When Brannan initially raised a concern regarding the omission,
the district court inquired whether he was asking the Government to supercede or
refile the information; he explicitly said, “No, I’m not.” Moreover, he added that
even though he believed that Count One lacked an essential element, he was not
“trying to dodge a trial today.”
12
Brannan reiterated this view after the jury was impaneled but before trial
began. The district court again asked the defendant whether he was “going to
waive” any objection to the purported defect in the charge and the defendant
unambiguously said: “I’m not going to ask for it to be dismissed or us not to
proceed today.” Nor did Brannan move to dismiss Count One at any time during
the proceeding. Indeed, knowing that the court had rejected his request for an
instruction about the victim’s lack of consent, he raised no objection to the
information nor to the instructions.
Even when read in a light most favorable to the defendant, this must
constitute invited error. Not only did Brannan fail to object to the charging
instrument nor move to dismiss it, he affirmatively encouraged the district court to
try this case on the very charge he thought defective. Indeed, he made it clear
throughout the proceedings that he wanted no delay in the trial. Had he objected
and moved to dismiss, or had he even asked the Government to amend the
information before going forward, the purported defect could have been easily
corrected. Simply put, the defendant cannot use the trial as a dry run on a
charging instrument he believed to be defective, encourage the trial court to go
forward, and only return to the issue later on appeal after sustaining an
13
unfavorable outcome. This is invited error and it bars us from reviewing
Brannan’s first claim on appeal.
B.
Brannan also says that the district court erred by admitting evidence of his
prior sexual acts in the Wildlife Refuge, under Fed. R. Evid. 404(b). We are
unpersuaded. The evidence elicited on cross examination was plainly relevant,
rebutted Brannan’s claims on direct examination, bore directly on predisposition
and an entrapment defense, and was not so unfairly prejudicial as to outweigh its
probative value.
Under Rule 404(b), evidence of prior crimes, wrongs, or bad acts is not
admissible to prove a defendant’s character in order to show conformity therewith,
but may be admissible to show motive, intent, preparation, plan, or absence of
mistake or accident. Fed. R. Evid. 404(b); United States v. Perez, 443 F.3d 772,
779 (11th Cir. 2006); United States v. Matthews, 431 F.3d 1296, 1310-11 (11th
Cir. 2005). It is by now horn-book law in this Circuit that to be admissible under
Rule 404(b), "[1] the evidence must be relevant to an issue other than the
defendant's character; [2] the act must be established by sufficient proof to permit
a jury finding that the defendant committed the extrinsic act; [and 3] the probative
value of the evidence must not be substantially outweighed by its undue prejudice,
14
and the evidence must meet the other requirements of Rule 403." Matthews, 431
F.3d at 1310-1311 (citation omitted); United States v. Chavez, 204 F.3d 1305,
1317 (11th Cir. 2000); United States v. Miller, 959 F.2d 1535, 1538 (11th Cir.
1992).
The district court plainly did not abuse its discretion by allowing evidence
of Brannan’s prior sexual acts in the Wildlife Refuge. As we’ve noted, on direct
examination Brannan testified at length that he did not initiate any improper
contact with Officer Blanks and only exposed himself at Blanks’ repeated request.
The district court properly allowed the Government to rebut Brannan’s testimony
that he would not otherwise have engaged in indecent exposure or public lewdness
by establishing that Brannan did indeed have the requisite intent, motive, or state
of mind to visit the park for purposes of engaging in casual sex. The evidence
elicited on cross examination undeniably tended to rebut Brannan’s direct
testimony.
Moreover, evidence that the defendant had previously engaged in sexual
acts at the Wildlife Refuge went directly to the issue of whether he was induced to
commit the crime. “Although the government normally may not introduce
evidence of a defendant’s predisposition to engage in criminal activity, it may do
so once a defendant submits evidence which raises the possibility that he was
15
induced to commit the crime,” usually in the context of an entrapment defense.
United States v. Walther, 867 F.2d 1334, 1343 (11th Cir. 1989); United States v.
Roper, 874 F.2d 782, 788 (11th Cir. 1989). An entrapment defense has two basic
elements: “(1) government inducement of the crime, and (2) lack of predisposition
on the part of the defendant.” United States v. Ryan, 289 F.3d 1339, 1343 (11th
Cir. 2002). Introduction of extrinsic evidence is a reliable method for showing the
criminal predisposition necessary to rebut any allegation of entrapment. United
States v. Salisbury, 662 F.2d 738, 741 (11th Cir. 1981).
Here, the defendant’s strategy hinged on Brannan’s testimony that Blanks
wrongfully solicited, encouraged, and consented to Brannan’s act, and that
Brannan would not have otherwise exposed himself in the Wildlife Refuge.
Evidence that Brannan had previously visited the Wildlife Refuge for casual sex
tended to show that he was not unwittingly induced into action by the improper
conduct of a federal agent. Although Brannan did not assert a legal entrapment
defense during trial,4 the Government had no way of knowing whether counsel
4
During the final charging conference, it was clear Brannan was not arguing legal
entrapment, but defense counsel admitted that there was potential for the argument that the
officer had entrapped Brannan:
The Court: Let’s decide on the entrapment. You’re not actually not legally
arguing entrapment. Yours really is going, in my view, to the
element that he didn’t affront or alarm. Aren’t you? It’s not so
much entrapment that he pulled it out. It’s really going to the
16
would assert entrapment as a defense until the close of its case, and properly
prepared for the defense by eliciting testimony of Brannan’s prior sexual acts in
case entrapment was argued at the end of the case. Nonetheless, Brannan’s
testimony regarding his awareness of the Wildlife Refuge as a casual sex meeting
area and his admission that he had previously engaged in casual sex at the Wildlife
element that he was not affronted or alarmed.
Mr. Gardner: In terms of if it does come down to a swearing contest, my guy is
more believable. That’s been my defense from the beginning on
this. Although I do admit that David [Estes, the Prosecutor] could
argue that some of the testimony just elicited would suggest that
the idea originated from the officer.
The Court: The first offense is that he exposed his genitals with the
intent to gratify the sexual desire of himself or someone
else. I don’t see you really arguing that not being met. The
second I don’t see that the offense was committed under
circumstances the defendant knew his conduct was likely to
cause affront or alarm. In my view, your defense is, from
how I’ve heard you try the case, is this officer wasn’t
affronted or alarmed, and he didn’t think anybody else was
going to see it.
Mr. Gardner: That’s it.
The Court: Right?
Mr. Gardner: You’re absolutely right.
The Court: It’s not that he was entrapped in the sense of-- I’m just trying
to think if this is going to be confusing to the jury.
R3 at 47-48 (emphasis added).
17
Refuge properly addressed Brannan’s claim that he was induced or enticed into
action by a law enforcement officer.
On this record, we cannot say that the district court abused its considerable
discretion by admitting the evidence of Brannan’s prior sexual acts. “Far from
being cumulative or of marginal value to the Government’s case, the
Government’s need for the evidence was strong; it may have been determinative of
the issue of willfulness” since the whole case really boiled down to competing
testimony from Brannan and Blanks. United States v. Lamons, 532 F.3d 1251,
1266-67 (11th Cir. 2008).
Accordingly, we affirm.
AFFIRMED.
18