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United States v. Stahlman

United States Court of Appeals, Eleventh Circuit

August 19, 2019

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JOHN DAVID STAHLMAN, Defendant-Appellant.

          Appeals from the United States District Court for the Middle District of Florida D.C. Docket No. 6:17-cr-00045-CEM-DCI-1

          Before JORDAN, GRANT and HULL, Circuit Judges.

          HULL, CIRCUIT JUDGE

         After a 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 affirm.

         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.

         I. FACTUAL BACKGROUND

         After 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.

         Stahlman's 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."

         On 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.

         In his 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."[1] 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."

         As the 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" with that.

         Over 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."

         Stahlman 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.

         The 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.

         Ultimately, 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."

         The 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.

         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 "fantasy façade."

         II. PROCEDURAL HISTORY

         In 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.

         A. Dr. Carr's Testimony

         Prior 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."

         The 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.

         Stahlman 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).

         The 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.

         Dr. 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."

         Dr. 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 this area.

         Dr. 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."

         On 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.

         Dr. 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[2] of Stahlman and considered the results of a polygraph test in evaluating Stahlman, but did not conduct any other psychosocial or sexual tests.

         On 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."

         The 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).

         B. Agent Hyre's Testimony

         As the 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.

         During 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 postings."

         The 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 to that.
GC: Okay.

         Later, 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 overruled."

         Stahlman 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 objection.

         Stahlman 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.

         Stahlman 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 it's-
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 per 702?
DC: Yes, Your Honor.
Court: Okay.
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 requested it.
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 ...

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