USA v. Darryl Gray Smith, Jr.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13334
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARRYL GRAY SMITH, JR.,
Defendant- Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:19-cr-00025-TJC-PDB-1
____________________
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2 Opinion of the Court 21-13334
Before NEWSOM, BRASHER, and EDMONDSON, Circuit
Judges.
PER CURIAM:
Darryl Smith appeals his convictions for attempting to en-
tice a minor to produce child pornography and for attempting to
entice a minor to engage in lewd or lascivious battery. No reversi-
ble error has been shown; we affirm.
This case arises from an undercover operation targeting
adults interested in having sex with children. As part of the inves-
tigation, an agent created a profile on an online chat application,
posing as a fictitious girl named Bri. Smith contacted “Bri” through
the chat application. Although Bri’s profile represented that she
was 20 years’ old, Bri told Smith during their first conversation that
she was in fact only 14 years’ old. Smith asked Bri to text him and
provided his phone number.
Smith then exchanged a series of text messages with Bri over
several days, during which Smith made sexually explicit com-
ments, asked Bri to send him pornographic photos of herself, and
sent Bri a photo of his penis. Smith also made arrangements to
meet Bri in person. When Smith arrived at the planned meeting
location, he was arrested.
Smith was charged with (1) attempted enticement of a mi-
nor to produce child pornography, in violation of 18 U.S.C. §§
2422(b) and 2426 (Count 1); (2) production of a notice seeking and
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21-13334 Opinion of the Court 3
offering to receive depictions of a minor engaged in sexually ex-
plicit conduct, in violation of 18 U.S.C. § 2251(d)(1)(A), (d)(2)(B),
and (e) (Count 2); and (3) attempted enticement of a minor to en-
gage in lewd or lascivious battery, in violation of 18 U.S.C. §§
2422(b) and 2426 (Count 3). Smith proceeded to trial, after which
the jury found Smith guilty of the charged offenses.* The district
court sentenced Smith to 120 months’ imprisonment on each of
Counts 1 and 3, to run concurrently.
On appeal, Smith challenges the district court’s denial of his
motion for judgment of acquittal. Smith contends that he was the
victim of entrapment by the government and that the government
failed to introduce evidence sufficient to prove that he was predis-
posed to commit the charged child-enticement offenses.
“We review
de novo a district court’s denial of judgment of
acquittal on sufficiency of the evidence grounds.”
United States v.
Rodriguez, 732 F.3d 1299, 1303 (11th Cir. 2013). In making that
determination, “we consider the evidence in the light most favora-
ble to the government, drawing all reasonable inferences and cred-
ibility choices in the government’s favor.”
Id. We will not over-
turn a jury’s verdict unless no “reasonable construction of the evi-
dence would have allowed the jury to find the defendant guilty be-
yond a reasonable doubt.”
Id.
* Smith’s conviction on Count 2 was later vacated in the light of our interven-
ing decision in
United States v. Caniff, 955 F.3d 1183 (11th Cir. 2020).
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4 Opinion of the Court 21-13334
“Entrapment is an affirmative defense that requires (1) gov-
ernment inducement of the crime, and (2) lack of predisposition on
the part of the defendant to commit the crime before the induce-
ment.”
United States v. Rutgerson, 822 F.3d 1223, 1234 (11th Cir.
2016). If a defendant satisfies his initial burden of production by
showing “some evidence” of inducement, the burden shifts to the
government to prove beyond a reasonable doubt that the defend-
ant was predisposed to commit the crime.
United States v. Ryan,
289 F.3d 1339, 1343 (11th Cir. 2002). When -- as in this case -- the
inducement element is not at issue and the jury rejects a defend-
ant’s entrapment defense, “our review is limited to deciding
whether the evidence was sufficient for a reasonable jury to con-
clude beyond a reasonable doubt that the defendant was predis-
posed to take part in the illicit transaction.”
See Rutgerson, 822
F.3d at 1234-35 (brackets omitted).
Whether a defendant is “predisposed” to commit a crime “is
a fact-intensive and subjective inquiry, requiring the jury to con-
sider the defendant’s readiness and willingness to engage in the
charged crime absent any contact with the government’s agents.”
Id. at 1235. We have said that “[p]redisposition may be demon-
strated simply by a defendant’s ready commission of the charged
crime.”
Id. “A predisposition finding is also supported by evidence
that the defendant was given opportunities to back out of illegal
transactions but failed to do so.”
Id.
Viewed in the light most favorable to the government, the
evidence presented at trial was sufficient to permit a reasonable
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21-13334 Opinion of the Court 5
factfinder to conclude beyond a reasonable doubt that Smith was
predisposed to violate section 2422(b). First, the text-message ex-
change between Smith and Bri -- an exchange that took place after
Smith learned that Bri was 14 years’ old -- evidences Smith’s readi-
ness and willingness to commit the charged child-enticement of-
fenses. Smith brought up the topic of sexual activity almost imme-
diately, asking Bri about the oldest guy she had “been with.” Over
the next few days, Smith continued asking Bri about her sexual ex-
perience, asking about her willingness to have sex with someone
his age (29), and expressing his desire to engage in sexual activity
with her. Smith also asked Bri repeatedly to send him “sexy” pho-
tos of herself, including directing Bri to take pornographic photos
to send to him. When Bri responded that she felt embarrassed and
uncomfortable doing so, Smith sent Bri a pornographic photo of
himself and later told Bri that she “owed” him a photo in return.
The record also demonstrates that Smith continued pursu-
ing Bri -- and the topic of sex -- after being given several opportuni-
ties (over several days) to end his communication with her. In a
post-
Miranda statement, Smith also admitted that he had been text-
messaging about “sexual stuff” with an underage girl.
We are satisfied that this evidence was sufficient to allow the
jury to find reasonably that Smith was predisposed to commit the
child-enticement offenses.
See Rutgerson, 822 F.3d at 1235 (con-
cluding that the evidence supported a finding of predisposition
when the defendant initiated online contact with a fictitious girl,
“readily proceeded to attempt to arrange a sexual encounter” after
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6 Opinion of the Court 21-13334
learning that the girl was 15 years’ old, declined repeated opportu-
nities to back out of the arranged meeting with the girl, and made
post-arrest statements indicating his belief that he had been com-
municating with a 15-year-old).
On appeal, Smith points to evidence he says supports a find-
ing of no predisposition, including (1) the lack of evidence that
Smith had previously sought out minors for sexual encounters; (2)
that Smith found Bri’s profile on an online site restricted to people
over the age of 18 and believed initially that Bri was 20 years’ old;
and (3) that in some of his texts, Smith said he did not intend to
have sex with Bri.
We stress that “the jury is free to choose among reasonable
constructions of the evidence” and, thus, “the evidence may be suf-
ficient even if it is not entirely inconsistent with conclusions other
than guilt.”
See United States v. Ndiaye, 434 F.3d 1270, 1294 (11th
Cir. 2006). Here, sufficient evidence supports the jury’s finding that
Smith was predisposed to commit the charged offenses. That other
evidence existed that might have allowed the jury to make a differ-
ent reasonable finding about predisposition is not enough to over-
turn the jury’s verdict.
See Rodriguez, 732 F.3d at 1303 (“A jury’s
verdict cannot be overturned if any reasonable construction of the
evidence would have allowed the jury to find the defendant guilty
beyond a reasonable doubt.”). Nor is it dispositive that Smith had
no prior criminal history of sex offenses against minors.
See Rut-
gerson, 822 F.3d at 1234 (“Existence of prior related offenses is rel-
evant, but not dispositive [of predisposition].”).
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21-13334 Opinion of the Court 7
Because the evidence was sufficient to permit a jury to con-
clude reasonably that Smith was guilty beyond a reasonable doubt,
the district court committed no error in denying Smith’s motion
for judgment of acquittal.
AFFIRMED.
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