Appeals from the United States District Court for the Middle
District of Florida D.C. Docket No. 6:17-cr-00045-CEM-DCI-1
JORDAN, GRANT and HULL, Circuit Judges.
jury trial, John David Stahlman appeals his conviction and
292-month sentence for attempting to entice a minor to engage
in sexual activity. On appeal, Stahlman argues that the
district court erred: (1) in excluding the testimony of his
proposed expert, Dr. Chris Carr; (2) in admitting the case
agent's lay opinion testimony and in denying
Stahlman's motion for a mistrial on that ground; (3) in
denying his motions for judgment of acquittal; (4) in
imposing a sentencing enhancement for obstruction of justice;
and (5) in denying his post-trial motion for a new trial.
After review, and with the benefit of oral argument, we
begin by recounting the trial evidence about Stahlman's
offense conduct, next review the procedural history, and then
address Stahlman's claims in turn.
two months of sordid email exchanges with a father who was
offering his 11-year-old daughter for sex, Stahlman drove to
a parking lot to meet up and live out his self-described
"daddy/daughter fantasy." Unfortunately for
Stahlman, the "father" was an undercover agent with
the Federal Bureau of Investigation ("FBI"), and
the "daughter" did not exist. At trial, Stahlman
testified and told the jury that he believed all along that
he was acting out a role-playing sexual game with other
adults-that he never intended to have sex with an
actual minor, just an adult pretending to
be a minor. The jury found him guilty.
sordid conduct began on November 10, 2016, when he posted an
ad on the "Casual Encounters" section of the
"Personals" page on Craigslist entitled
"Daddy/daughter fantasy," with a picture of girl
laying on a bed wearing only underwear and a camisole. In the
ad, Stahlman wrote: "I am a married white guy looking
for a young 'looking' girl to play out some fantasies
with me." Stahlman added: "I have a daughter but
wouldn't dare defile her. So I'd like to chat at
first to fill this need, and maybe, just maybe move to
physical pleasure." Stahlman closed the ad by requesting
that interested persons contact him via email or the instant
messaging application Kik and stating, "Hope to hear
from you, honey."
November 16, 2016, Special Agent Rodney Hyre came across
Stahlman's Craigslist ad while working in an undercover
capacity to identify persons who might be trying to sexually
exploit children. Agent Hyre is the coordinator of the
FBI's Violent Crimes Against Children Task Force. Agent
Hyre estimated the age of the girl pictured in Stahlman's
ad to be between 10 and 12 years' old and suspected from
"the nature of the advertisement" that Stahlman
might be someone who was "attempting to find a child to
sexually exploit." Responding to the ad, Agent Hyre
began an undercover conversation with Stahlman. The
conversation lasted from mid-November 2016 through the end of
January 2017. During that time, Stahlman and Agent Hyre
exchanged 125 emails and 22 Kik messages discussing plans for
Stahlman to meet and engage in sexual activity with
Hyre's fictional 11-year-old daughter.
initial response to Stahlman's post, Agent Hyre stated he
was a straight, single father of an 11-year-old daughter.
Hyre indicated that he felt "the same way" Stahlman
did and said "HMU [hit me up] if this interests
you." Stahlman quickly responded: "Defin[i]tely
interested. Depends on what you want to do?" Agent Hyre
asked about Stahlman's daughter. Stahlman responded that
she was nine years' old and reiterated that he
"wouldn't defile [his] little girl," but said,
"I think I would play with someone
else's." In another email, however, Stahlman stated
that he fantasized about his own daughter "[i]n the
right moments[, ] when she is changing and I catch a glimpse
or when we are tickle fighting and hands go places."
Agent Hyre explained that, in this context "tickle
fighting" or the "tickle game" meant
"where people interested in children this way will
pretend they're tickling the child to make them laugh,
and they will let their hands drift into inappropriate places
on the child to test the boundaries of the child."
conversation progressed, Agent Hyre indicated to Stahlman
that his 11-year-old daughter had engaged in sexual
activities with other adult men before. Stahlman stated that
he "would like to act out [his] fantasies" and
would like to "play" with Hyre's 11-year-old.
Stahlman asked Agent Hyre: "So what would I have to do
to . . . 'qualify' myself the opportunity to meet
your lovely little lady?" Agent Hyre replied that
Stahlman would "have to be okay with me watching,"
and Stahlman agreed that he would be "totally ok"
the course of their conversations, Stahlman made several
statements describing the types of sexual activities he would
like to engage in with Agent Hyre's 11-year-old daughter.
Among other things, Stahlman stated: "I just envisioned
licking your daughter's pussy as she slept and you
filming it"; "I'd defin[i]tely want to eat her
pussy and watch her suck my cock. I'd probably want to
eat her little ass too"; "[I]f it led to sex
I'd be cool with that too but I'm for sure into oral
play"; "I would like to see her undress, or undress
her myself and just kiss and play. Maybe do a little oral on
eachother. Then see where it leads"; "I think I
would want sex, maybe even anal"; "[C]ould her and
I start with a shower[?]"; and "We could explore
eachother's bodies and it not be all that sexual. Then be
all clean for the fun part." Stahlman also asked Agent
Hyre for pictures of his 11-year-old, and Agent Hyre sent him
a picture of a fellow law enforcement officer when she was 12
or 13. Stahlman commented that she was "a little older
than [he] pictured, which is quite alright," and that
"she looks very cute and sexy."
attempted to set up a meeting with Agent Hyre and his
11-year-old in mid-November while Stahlman's wife was
supposed to be out of town, but the plan was cancelled when
Stahlman's wife insisted that he travel with her. A bit
later in November, Stahlman again discussed plans to meet
Agent Hyre's 11-year- old, but that plan likewise fell
through when Stahlman was unable to get away from his wife.
In early December 2016, Agent Hyre reached out to Stahlman
again and asked, "Hey man you still interested in
playing or should I delete you?" Stahlman replied:
"Go ahead and delete me. My availability has just
dwindled lately. It's probably not gonna happen. Thanks
for the opportunity." When Agent Hyre inquired whether
Stahlman might "want to later" or had "just
changed [his] mind about the whole thing," Stahlman
replied that he had not changed his mind, but could not find
the time to set up a meeting.
conversation between Stahlman and Agent Hyre lapsed through
the rest of December 2016 and into January 2017, but picked
back up when Agent Hyre contacted Stahlman again in late
January. In a January 23, 2017 email, Agent Hyre stated:
"Last we talked you said you hadnt changed your mind[.]
Just couldnt find the time, that still true[?]" Stahlman
confirmed "that's still true," then asked
"Are you two free a week from now? Next Monday?"
Agent Hyre responded that he and his daughter would be
available, and over the next few days, Hyre and Stahlman made
plans for their meeting.
they decided to meet at 8:30 a.m. on Monday, January 30, 2017
in the parking lot of a Gander Mountain sporting goods store
in Lake Mary, Florida. Agent Hyre proposed that the two men
meet each other first, then go to meet Agent Hyre's
11-year-old, and Stahlman agreed. Stahlman told Agent Hyre he
would be driving a "[w]hite VW." Among other
things, Stahlman asked Agent Hyre multiple times whether he
should bring condoms, whether he could shower with Agent
Hyre's daughter before engaging in sexual activity with
her, whether she "like[d] kissing," and whether
Agent Hyre would be filming or taking pictures of their
activities. On the day before the meeting, Stahlman told
Agent Hyre "I am really looking forward to Monday,"
and "I can't wait." On the morning of January
30, 2017, about an hour before they were scheduled to meet,
Stahlman emailed: "Tik Tock. It's almost time."
morning of their scheduled meeting, January 30, 2017,
Stahlman drove to the Gander Mountain parking lot in Lake
Mary from his home in Longwood, Florida. Stahlman arrived at
approximately 8:25 a.m. in his white VW, wearing a green
Teenage Mutant Ninja Turtles t-shirt. Stahlman exited his
vehicle and approached the undercover agent (not Agent Hyre)
who was playing the role of the father of the 11-year-old. At
that point, Agent Hyre, who was watching from a surveillance
vehicle, approached and arrested Stahlman.
waived his Miranda rights and agreed to speak with
Agent Hyre and another agent, Kevin Kaufman. During the
interview, Stahlman admitted that he was in a conversation
for the last two-and-a-half months with the father of an
11-year-old and that conversation was about Stahlman's
engaging in sex with the 11-year-old. Stahlman told Agent
Hyre that he "knew that he could get arrested, he knew
that this could have been a sting, but he came to the parking
lot anyway." At one point during the interview, Stahlman
told Agent Hyre that he "was there to have sex with
[Hyre's] wife," but later conceded that they had
never "talked about an adult woman a single time"
and that there had been no mention of a wife or other adult.
Agent Hyre also noted that he had told Stahlman he did not
need to bring condoms because the 11-year-old was too young
to get pregnant, and Stahlman acknowledged that he
"showed up without condoms because he believed he was
showing up for an eleven-year-old." Stahlman also told
Agent Hyre, however, that he was expecting to meet an adult
portraying a minor and referred to their conversation as a
2017, a federal grand jury charged Stahlman with one count of
attempting to persuade, induce, and entice a minor to engage
in sexual activity, in violation of 18 U.S.C. § 2422(b).
Stahlman pled not guilty and proceeded to trial.
Dr. Carr's Testimony
to trial, Stahlman gave notice of his intent to present the
testimony of psychologist Dr. Chris Carr, Ph.D., as an expert
witness. Stahlman sought to introduce Dr. Carr's
testimony to "provide the proper context to Mr.
Stahlman's fantasy ad and his subsequent
communications." Specifically, Dr. Carr would
"opine that Mr. Stahlman's online communications at
issue in this case, along with Mr. Stahlman's history of
sexual behavior, is consistent with a person attempting to
act out a fantasy rather than attempting sexual contact with
an actual minor."
government filed a motion in limine to exclude Dr. Carr's
testimony, arguing that his testimony: would impermissibly
give an opinion on Stahlman's intent, in violation of
Federal Rule of Evidence 704(b); was not proper expert
testimony under Rule 702; was not relevant under Rule 401;
and should be excluded under Rule 403 because it carried an
undue risk of misleading the jury.
responded that: Dr. Carr's testimony was necessary to
ensure his right to present a defense; that Dr. Carr was
qualified to provide expert testimony based on his
professional training and experience; that other courts have
admitted expert testimony similar to Dr. Carr's; that Dr.
Carr's testimony would help the jury understand the
concept of internet-based sexual fantasy; and that Dr.
Carr's testimony would not violate Rule 704(b).
district court held an evidentiary hearing on the
government's motion to exclude Dr. Carr's testimony.
At the hearing, Dr. Carr testified that he was a licensed
psychologist since 1994, worked as a forensic psychologist
for his entire career, and focused on evaluating people who
had committed sex offenses. Dr. Carr previously worked for
the Florida Department of Corrections for six years. Since
2003, Dr. Carr worked for the State of Florida as a member of
the Department of Children and Families Sexually Violent
Predator Program. As part of that program, Dr. Carr conducted
evaluations of the "highest risk" sexual offenders
to determine whether they should be civilly committed after
completing their prison terms.
Carr met with Stahlman in March 2017 and conducted a
diagnostic interview. As part of his evaluation, Dr. Carr
took Stahlman's "psychosocial and psychosexual
history," reviewed Stahlman's Craigslist ad and
conversations with Agent Hyre, and consulted relevant journal
articles. Dr. Carr believed Stahlman was "open" and
truthful during their interview and provided "abundant
information" to inform his diagnosis. Dr. Carr diagnosed
Stahlman with moderate adjustment disorder with anxiety and
"other specified sexual dysfunction," which Dr.
Carr described as "qualified bisexual preoccupation and
sexual fantasy online."
Carr opined that, in this case, Stahlman "was engaged in
role-playing and fantasy role-play." Dr. Carr based this
opinion on Stahlman's history, the Craigslist ad and
emails, the DSM-V, and "research articles about this
type of phenomena." In particular, Dr. Carr relied on
two articles, "Typing, Doing and Being: Sexuality and
the Internet," and "The Online Disinhibition
Effect," which Dr. Carr stated were peer-reviewed and
written by authors who are experienced and well-respected in
Carr explained that there is a difference between a desire to
engage in role-play and a desire actually to engage in sexual
activity with a minor. Dr. Carr elaborated that, with a
daddy-daughter fantasy for example, there are two ways of
seeking that out. One way "is to go to child pornography
sites [where] you would find that kind of thing." The
other would be to act out the fantasy with other adults. Dr.
Carr opined that, with "people who have sexual interest
in a child, it's about the child's body, whereas with
adults acting out these types of fantasies, it's more
about the psychological dynamics involved." In other
words, in the fantasy context, "your sexual interest is
in adults playing certain roles."
cross-examination, Dr. Carr acknowledged that he had never
published any academic papers or conducted research or
studies on the online disinhibition effect, cybersexuality,
fantasy, or role-play. Dr. Carr's interview with Stahlman
lasted between one-and-a-half and three hours, and he did not
meet with Stahlman a second time. Dr. Carr did not speak to
Stahlman's wife, ex-wife, prior sexual partners, or
children. Dr. Carr did not review Stahlman's National
Guard service records or other employment records.
Carr further testified that Stahlman told him during their
interview that he had watched videos simulating sex between a
father and minor daughter with adults playing the parts. Dr.
Carr asked Stahlman whether he ever had an interest in
children, and Stahlman "did not express an interest in
children." However, Stahlman also told Carr that he had
read and masturbated to erotic stories involving adults and
children, including stories on a website called Asstr.org,
but Stahlman denied ever masturbating to pictures of
children. Dr. Carr conducted a Static-99 test of Stahlman and
considered the results of a polygraph test in evaluating
Stahlman, but did not conduct any other psychosocial or
redirect, Dr. Carr testified that he learned, after his
interview with Stahlman, that no child pornography was found
on Stahlman's phone, but the phone had evidence "of
these daddy-daughter role-plays without any children, with
adults acting in that." Dr. Carr opined that this was
"consistent with [his] findings."
district court took the motion under advisement. On the first
day of trial, the district court granted the government's
motion to exclude Dr. Carr's testimony. The district
court determined that Dr. Carr's methodology was
unreliable, his testimony would not assist the jury, and his
testimony would violate Rule 704(b). The district court
explained its decision as follows:
In the Court's view, Dr. Carr seeks to tell the jury that
defendant was only role-playing and therefore lacked the
requisite intent to commit the offense.
To state the Court's finding in the context of the
Eleventh Circuit's Daubert analysis:
One, Dr. Carr is a qualified psychologist;
Two, what little is known of Dr. Carr's methodology is to
this Court unreliable; and,
Three, Dr. Carr's testimony falls well short of assisting
the trier of fact.
Dr. Carr's ultimate opinion invades the province of the
jury as he seeks to substitute his judgment for the
jury's, in violation of Federal Rule of Evidence 704(b).
Agent Hyre's Testimony
government's first witness at trial, Agent Hyre testified
that he had been an FBI agent for 16 years and currently
served as the coordinator for the Violent Crimes Against
Children Task Force, which investigates the sexual
exploitation of children. Agent Hyre received various types
of training on how to conduct such investigations, and that
training included, among other things, training on
terminology used by sexual predators.
Agent Hyre's testimony, Stahlman made a number of
objections on the ground that Agent Hyre, a lay witness, was
improperly giving expert testimony. Stahlman first objected
when Agent Hyre, discussing Stahlman's Craigslist ad,
stated: "To my experience, this ad would be
flagged." Initially, Stahlman objected that this
statement was "non-responsive," and the district
court overruled the objection. Agent Hyre then continued his
answer, but Stahlman objected again when Agent Hyre said:
"In other words, Craigslist users, when they see an ad
that they see to be illegal-[.]" At that point, Stahlman
objected, citing Federal Rule of Evidence 701, and stating
"He's not qualified as an expert on Craigslist
district court called counsel up for a sidebar, and
Stahlman's counsel reiterated, "I'm objecting to
this as improper expert testimony." Counsel for the
government responded that Agent Hyre's testimony was
appropriate lay witness testimony and was "necessary to
complete the story." The district court then engaged in
this colloquy with the government:
Court: Well, all I can do is apply my common sense here, and
I know what Craigslist is. I know what their communications
are, but his specific explanation of what these terms mean in
the context of child solicitation, child whatever, I think
that's opinion testimony.
Government Counsel (GC): Okay. So you're saying that
it's excluded under 701?
Court: No, I'm saying that you need an expert to testify
as Agent Hyre was testifying about his communications with
Stahlman, the government asked: "Now, in the context of
this conversation, what did you interpret, 'I am selfish.
I wouldn't give mine up in exchange. Just getting that
out there,' to mean?" Stahlman objected that the
question called for an improper opinion, and the government
responded that "this is admissible under Rule 701 as
it's in the context of the conversation." The
district court ruled: "701(a), the Court's finding
is that this is rationally based, this witness's
perception, this particular answer. The objection is
objected again when the government asked Agent Hyre what the
term "tickle fighting" meant. Initially, Stahlman
objected on the ground that Agent Hyre's answer was
non-responsive, and the district court overruled the
objection. Agent Hyre then finished his response, explaining
that "tickle fighting" in this context referred to
when a sexual predator, in the course of tickling a child,
"will let their hands slip." Stahlman objected
again, this time on the basis of improper opinion, citing
Rule 701(c). The government agreed to "just move
on," and the district court did not rule on the
made his next objection when the government asked Agent Hyre,
"[I]n the context of this conversation, how did you
interpret what he-when he said, 'qualify myself the
opportunity, '" and Agent Hyre responded, "What
does he have to do to be able to meet my
eleven-year-old." Stahlman objected, stating:
"Again, I'm going to renew my previous objections to
701. (A) through (c) are conjunction. They're all
required in order to be admitted, and I'm objecting as
improper expert testimony." The district court ruled:
Okay. Under 701, I hereby find that this testimony is
rationally based on this witness's perception; that it is
helpful to clearly understanding the witness's testimony
or to determining a fact in issue; and based on the predicate
that the government laid, there is specialized knowledge
within the scope of this testimony.
So based on that finding, and that finding is applicable
retroactively, I'm going to allow this testimony. Your
objection, though, is noted for the record.
renewed his improper opinion objection again when the
government asked Agent Hyre: "Now, again, in the context
of this conversation, what did you interpret 'trimmed
downstairs' to mean?" Stahlman's counsel asked
to approach the bench, and the district court called both
counsel to a sidebar, where this colloquy ensued:
Defense Counsel (DC): Your Honor, again, this is specialized
knowledge and he hasn't been disclosed as an expert to
me, and I don't know how this Court is finding that
Court: Just let me ask you this.
DC: Yes, Your Honor.
Court: They laid a predicate on him of all the training he
did, all the presentations he did, the fact that he's
been doing this for eight years, leading investigations,
testifying in Court many times with regard to solicitation,
child exploitation, and child pornography. Now, they
haven't asked that he be qualified as an expert, but,
quite frankly, if they did, I would.
But why doesn't he have specialized knowledge in this
area, based on the predicate that he laid?
DC: If he did, Your Honor, I would have asked for a
Daubert hearing and I would have filed my own motion
in limine. I don't think he's an expert, Your Honor.
Court: Well, every single trial he's testified in these
types of cases, he's either been able to testify under
702 or qualified as an expert. So your position is he's
not an expert and, further, he has no specialized knowledge
DC: Yes, Your Honor.
DC: And if Your Honor does find that he's an expert, then
I would move to strike him as they did not disclose him.
Court: I'm not making that finding. They haven't
But their position [is] that under 702, he meets the criteria
and has specialized knowledge that would assist the jury in
the context of that ruling. You disagree with that, correct?
DC: Yes, Your Honor.
Court: All right. What's your position ...