     Case: 15-30280   Document: 00513495360        Page: 1   Date Filed: 05/06/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                    No. 15-30280                          FILED
                                                                       May 6, 2016

UNITED STATES OF AMERICA,                                            Lyle W. Cayce
                                                                          Clerk
             Plaintiff - Appellee

v.

KEITH JOSEPH MCGEE,

             Defendant - Appellant




                Appeal from the United States District Court
                   for the Eastern District of Louisiana


Before KING, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:
      Keith McGee appeals his conviction for attempted production of child
pornography under 18 U.S.C. § 2251, claiming there was insufficient evidence
for the jury to find that he intended for a minor to create and send a sexually
explicit picture during an email conversation. McGee also objects that an
agent’s testimony that McGee “sexually exploit[ed] a child” was improper and
highly prejudicial such that its admission into evidence constitutes plain error.
For the reasons that follow, we AFFIRM the district court’s judgment in all
respects.
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                                No. 15-30280
                                       I.
      McGee engaged in an online email conversation with “Josh,” a person
who represented himself to be a 14-year-old boy.         In fact, McGee was
corresponding with FBI Agent Matthew Allison. Over the course of several
hours, McGee repeatedly requested a picture of Josh’s genitals and the two
discussed meeting in person. While the two never met in person and did not
exchange any explicit pictures, Agent Allison gathered enough information to
identify McGee. McGee’s residence and devices were searched, and he was
indicted on three counts of federal child pornography offenses for his conduct
with Josh and two other minors.
      As relevant here, McGee was charged in Count One of the indictment
with “Attempted Sexual Exploitation of Children,” or attempted production of
child pornography, under 18 U.S.C. § 2251 (a) & (e). Following a jury trial,
McGee was convicted on Count One and the other two counts. The district
court sentenced McGee to fifteen years in prison on Count One, which is the
mandatory minimum sentence required for the production of child
pornography. If McGee had been convicted solely on the other two counts of
the indictment, involving receipt of child pornography, his mandatory
minimum sentence would have been five years in prison.          See 18 U.S.C.
§ 2252(a)(2), (b)(1). McGee timely appealed only his conviction and sentence
for production of child pornography.
                                       II.
      We review for plain error objections to evidence that were not made
before the district court. See United States v. Flores-Martinez, 677 F.3d 699,
710 (5th Cir. 2012). We may correct an error on this type of review when the
error is plain, has not been intentionally relinquished or abandoned, affects
substantial rights, and seriously affects the fairness, integrity, or public
reputation of judicial proceedings. See United States v. Escalante-Reyes, 689
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                                    No. 15-30280
F.3d 415, 419 (5th Cir. 2012) (en banc).
      The parties contest what standard of review applies to McGee’s
sufficiency-of-the-evidence challenge—de novo review or review for a manifest
miscarriage of justice. 1 Compare Jackson v. Virginia, 443 U.S. 307, 319 (1979)
(noting de novo review asks whether “any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt”), with United
States v. Herrera, 313 F.3d 882, 885 (5th Cir. 2002) (en banc) (noting we review
unpreserved objections for a manifest miscarriage of justice, inquiring whether
the record is “devoid of evidence pointing to guilt” (citation omitted)), and
United States v. Brown, 727 F.3d 329, 335 (5th Cir. 2013) (similar, reviewing
for whether “the evidence on a key element of the offense is so tenuous that a
conviction would be shocking” (citation omitted)).           Under either standard,
evidence and inferences in this case are viewed in the light most favorable to
the government. See Brown, 727 F.3d at 335.
      We need not and do not decide whether McGee properly preserved his
objection to the sufficiency of the evidence because we conclude McGee’s
challenge fails even under the less deferential standard of de novo review
established in Jackson. See Brown, 727 F.3d at 335 (“Where, as here, the
evidence satisfies the less searching Jackson standard, it follows that there has
been no manifest miscarriage of justice.”).
                                          III.
      McGee argues there is insufficient evidence that he attempted to produce
child pornography within the meaning of 18 U.S.C. § 2251, and of an interstate
nexus under that statute. Both of these issues turn on whether there is
sufficient evidence that McGee tried to persuade Josh to send a newly-created


      1   The government concedes that “McGee preserved the challenge” to the sufficiency
of the evidence on the interstate commerce element of the crime. We therefore review this
part of McGee’s challenge de novo. See Jackson v. Virginia, 443 U.S. 307, 319 (1979).
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                                       No. 15-30280
picture of his genitals.
       As relevant here, § 2251 proscribes purposefully persuading, inducing,
enticing, or coercing a minor to engage in any sexually explicit conduct, for the
purpose of producing any visual depiction of such conduct, if such person knows
or has reason to know that such visual depiction will be transmitted in or
affecting interstate or foreign commerce. 18 U.S.C. § 2251(a); United States v.
Runyan, 290 F.3d 223, 243 (5th Cir. 2002) (stating that § 2251 “requires the
Government to prove that the defendant knew or had reason to know at the
time that the images were created that those images ‘will be transported in
interstate or foreign commerce’” (first emphasis added) (quoting § 2251)).
Section 2251(e) criminalizes attempted production, with which McGee was
charged. “To sustain a conviction for attempt, the evidence must show the
defendant (1) acted with the culpability required to commit the underlying
substantive offense, and (2) took a substantial step toward its commission.”
United States v. Olvera, 687 F.3d 645, 647 (5th Cir. 2012) (citation omitted).
       The parties do not dispute that transmitting a picture via the internet
constitutes interstate transportation sufficient to satisfy the interstate
commerce element of § 2251. 2 See Runyan, 290 F.3d at 239. However, McGee
argues that the government failed to prove he acted for the purpose of
producing a visual depiction as required by § 2251(a). Instead, McGee claims
the evidence shows that he simply asked for a sexually explicit picture, 3 which


       2  The record shows that McGee and Josh communicated via email, including emailing
non-explicit photographs to each other. McGee concedes that the interstate commerce
element was proven in this case if the evidence was sufficient to prove that McGee attempted
to entice Josh to send a new, explicit photograph via email. See Runyan, 290 F.3d at 239.
       3 The parties also do not dispute that McGee sought a sexually explicit image within
the meaning of § 2251. Section 2256 defines “sexually explicit conduct” to include “lascivious
exhibition of the genitals or pubic area of any person.” 18 U.S.C. § 2256(2)(A)(v). Since
McGee requested a picture of Josh’s genitals, this element is also satisfied. See generally id;
United States v. Steen, 634 F.3d 822, 826–28 (5th Cir. 2011) (discussing what constitutes “a
lascivious exhibition of the genitals”).
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                                 No. 15-30280
in the context of the conversation did not require the creation of a new picture.
McGee thus argues the jury had insufficient evidence to convict him.
      In these circumstances, the jury must at least be able to draw the
inference that the defendant encouraged a minor to take sexually-explicit
pictures and send them to the defendant. In other words, the jury must have
sufficient evidence to draw the inference between a defendant’s solicitation of
sexual activity and the production of a pornographic image, whether through
the minor taking and sending a picture or otherwise. See, e.g., United States
v. Broxmeyer, 616 F.3d 120, 125–27 (2d Cir. 2010) (reversing a production
conviction because the government failed to show the sequence of events
between the defendant’s solicitation of pictures and the minor’s taking and
sending explicit pictures to the defendant); United States v. Palomino-
Coronado, 805 F.3d 127, 132–33 (4th Cir. 2015) (reversing a conviction where
the defendant and minor were engaged in a months-long sexual relationship
and it was unclear whether the defendant initiated sexual activity specifically
for the purpose of taking a photograph of it).
      We conclude the jury had sufficient evidence to infer that McGee sought
to encourage Josh to take and send a newly-created picture of his genitalia,
satisfying § 2251. Josh and McGee emailed back and forth for hours, during
which time Josh told McGee he was only 14 years old and they discussed
possibly meeting at the hotel where Josh was staying.              Early in the
conversation, McGee asked Josh whether he wore “boxers or briefs” and about
the size of his genitals. This set the tone for the conversation. McGee asked
for a picture, and Josh sent an email with a picture of a teenage boy, shirtless,
sitting outdoors. In increasingly graphic fashion, McGee continued to ask for
pictures of Josh’s genitals even after Josh explained that he had sent his best
picture. McGee insisted that he “wanted another” picture, and when Josh
attempted to discuss meeting in person with McGee the next day, McGee said
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                                       No. 15-30280
Josh could email him, but that Josh “need[ed] to do something for [McGee].”
Josh asked what, and McGee said: “Show me ur [genitals] lol.”
       From Josh and McGee’s emails, the jury reasonably could have drawn
the inference that McGee sought a newly-created picture of Josh’s genitals. See
Coleman v. Johnson, 132 S. Ct. 2060, 2065 (2012) (observing that the Jackson
inquiry asks only whether the jury’s finding “was so insupportable as to fall
below the threshold of bare rationality”); United States v. Vargas-Ocampo, 747
F.3d 299, 303 (5th Cir. 2014) (en banc). McGee repeatedly sought a picture of
Josh’s genitals, even after Josh sent a less explicit picture of himself and
exhibited reluctance to put a picture of his genitals “out there.” McGee asked
if Josh had a webcam or Skype. 4 These facts, combined with Josh’s reluctance
to put an explicit picture “out there,” McGee’s persistence after Josh said he’d
sent his best picture, and McGee’s attempt to entice Josh to show him his
genitals in exchange for meeting the next day, all support a reasonable
inference that McGee knew Josh would have to take a new picture to comply.
Accordingly, the evidence reasonably supports that McGee purposefully sought
to have Josh take and send a newly-created picture of his genitals via email,
which would satisfy the statute.
                                             IV.
       McGee also objects to the fact that FBI Agent Allison stated more than
once during his testimony at trial that he determined McGee “sexually
exploit[ed] children.” Agent Allison testified as a lay witness, and McGee
argues that he gave a legal conclusion that constituted improper opinion



       4  McGee claims in his reply brief, without citation to any authority, that this part of
the discussion is irrelevant because “[u]sing a webcam or Skype does not create a visual
depiction.” McGee is incorrect. Section 2251 criminalizes live videos of explicit content as
well as still visual depictions. See United States v. Nichols, 371 F. App’x 546, 546–47, 549–
50 (5th Cir. 2010). Therefore, it is relevant that McGee asked about using a webcam shortly
after requesting to see Josh’s genitals.
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                                        No. 15-30280
testimony under Federal Rules of Evidence 701 and 704, especially given that
§ 2251 is entitled “Sexual exploitation of children.” 18 U.S.C. § 2251.
       While testifying about his conversation with McGee online, during which
Agent Allison was posing as “Josh,” Agent Allison explained his investigative
strategy. Agent Allison explained that at one point, he was “trying to keep this
person in the conversation” to identify him, because Agent Allison’s job was “to
protect children from being sexually exploited and this person is sexually
exploiting a child.” When asked about whether he had identified McGee at a
certain point in time, Agent Allison responded that he had not, but that he was
“pas[t] the point of determining whether or not this individual was involved in
sexually exploiting children. He had already asked for several sexual [sic]
explicit pictures,” such that Agent Allison was attempting to “transition the
investigation into learning about any other potential victims.” Agent Allison
later stated he determined McGee was “sexually exploiting children by asking
a 14 year old for pictures of his penis,” but the district court sustained defense
counsel’s objection and struck that testimony, so we do not consider it further. 5
       We review the remaining two incidents of Agent Allison’s use of the
phrase “sexually exploiting a child” for plain error, since McGee’s counsel failed
to object to the uses of the phrase that McGee now challenges on appeal. See
Flores-Martinez, 677 F.3d at 710. Rule 701 limits opinion testimony by a lay
witness to that which is: “(a) rationally based on the witness’s perception; (b)
helpful to clearly understanding the witness’s testimony or to determining a


       5   We do not review the last instance of the agent’s use of the phrase “sexually
exploiting a child.” McGee’s objection to that testimony was sustained and the testimony
stricken, and he made no further requests in this regard. While McGee’s brief mentions this
last use of the phrase, he admits the court struck the testimony and focuses on the effect of
the “two prior iterations” of the phrase. We do not interpret this as a challenge to the district
court’s grant of McGee’s objection or chosen remedy, and we do not discern a separate
objection to the remedy before this court or the district court. Therefore, we only review
Agent Allison’s two prior uses of this phrase.
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                                        No. 15-30280
fact in issue; and (c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.” FED. R. EVID. 701. While Rule 704(a)
specifies that “[a]n opinion is not objectionable just because it embraces an
ultimate issue,” we have clarified that Rule 704(a) also does not mean
conclusions on ultimate legal issues are necessarily admissible. See United
States v. Williams, 343 F.3d 423, 435 (5th Cir. 2003).
        Even assuming arguendo that Agent Allison’s testimony was
impermissible, 6 McGee has not shown plain error. See Escalante-Reyes, 689
F.3d at 419. The evidence in this case was sufficient for the jury to draw its
own inference, apart from Agent Allison’s testimony, that McGee sought to
have Josh produce and send a newly-created, sexually explicit photo. Although
we do not condone the use of this phrase during Agent Allison’s testimony, we
cannot say that the use of the phrase affected the outcome or seriously affected
the fairness, integrity, or public reputation of the proceedings; therefore,
allowing Agent Allison to use this phrase does not constitute plain error. See
Flores-Martinez, 677 F.3d at 710; cf. Williams, 343 F.3d at 435.
       AFFIRMED.




       6  The problem with this phrase is that it corresponds to the title of the challenged
count of conviction in this case. Section 2251 is entitled “Sexual exploitation of children,” and
although the phrase apparently did not appear on the verdict form or in the jury instructions,
it appeared on the indictment that was read to the jury during jury selection. The same
phrase, or some variation of it, was also used by the government throughout its opening
statement and by both parties during witness examinations. It is unclear whether the jury
received the indictment containing § 2251’s title during deliberations. Thus, McGee argues
that Agent Allison’s uses of the phrase were unduly suggestive.
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