           Case: 16-15858   Date Filed: 05/31/2017   Page: 1 of 8


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-15858
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 3:15-cr-00089-MMH-PDB-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

JON CHRISTOPHER STOUNE,
a.k.a. Mycroft James Holmes,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                               (May 31, 2017)

Before HULL, WILSON, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Jon Stoune appeals his convictions for attempting to entice a minor to

engage in sexual activity for which a person can be charged with a criminal

offense, in violation of 18 U.S.C. § 2422(b); advertising to receive and produce

visual depictions involving the use of a minor engaging in sexually explicit

conduct, in violation of 18 U.S.C. § 2251(d)(1)(A), (d)(2)(B); and attempting to

produce child pornography, in violation of 18 U.S.C. § 2251(a). Stoune argues

that he was deprived of a fair trial because the district court (1) failed to give a

curative instruction following the prosecutor’s improper closing argument and (2)

permitted lay opinion testimony from a government witness. We affirm.

                                         I.

      Stoune was convicted following a two-day jury trial.               The evidence

introduced at trial showed that over the course of approximately five weeks,

Stoune engaged in a series of sexually explicit text- and Internet-based

conversations with “Emily Shannon,” a fictitious 14-year-old deaf girl.

Unbeknownst to Stoune, he was actually communicating with Sergeant George

Stephen Gazdick of the St. Johns County Sheriff’s Office, who was participating in

an undercover sting operation.

      As the conversations began, Stoune identified himself as Mycroft James

Holmes. But Emily questioned whether this was Stoune’s real name, indicating

that a simple Internet search revealed that Mycroft Holmes is a fictional


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character—the elder brother of detective Sherlock Holmes. Through some crafty

detective work of his own, Sergeant Gazdick was able to uncover Stoune’s true

identity, which was not disputed at trial.

      As the conversations continued, Stoune requested that Emily send pictures

of herself, and he sent Emily numerous photos and videos of his genitalia. Stoune

also told Emily about bondage, dominance, and sadomasochism (“BDSM”) and

discussed his desire for Emily to be his subordinate sex partner. On multiple

occasions throughout these exchanges, Stoune expressed knowledge of Emily’s

age and of the illegality of his actions.

      At Stoune’s request, the two eventually agreed to meet in person. The police

apprehended Stoune at the pre-determined meeting location, where he possessed a

plethora of BDSM and other sex paraphernalia. After Stoune was arrested, he

admitted to Sergeant Gazdick that he had arrived to meet a 14-year-old girl he met

online but claimed he did not intend to have sex with her. Stoune further indicated

that he thought he was engaged in role-playing, although his prior messages to

Emily expressly debunked that idea.

      At trial, Detective Gazdick testified in detail concerning the events that led

to Stoune’s arrest.      During cross-examination, Stoune questioned Detective

Gazdick concerning his false representations to Stoune, such as by posing as

Emily. Detective Gazdick admitted that he was engaged in role-playing himself.


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But on redirect, Detective Gazdick further stated, “You don’t sell narcotics in a

police uniform.” As part of the same line of questioning, the prosecutor then asked

the following question: “And so do you have any idea or any opinion, based upon

your training and experience, as to why a subject that you were chatting online

with would provide you with a false name?” Stoune immediately objected on the

ground that “I think that goes beyond his expertise.” The district court overruled

the objection, and Sergeant Gazdick responded, “To avoid detection. To avoid

being caught.”

      During his closing argument, Stoune argued that the jury should not find him

guilty of enticement in part because he did not intend to have sex with a child. In

rebuttal, after discussing the evidence establishing Stoune’s intent, the prosecutor

posed a rhetorical question to the jury: “Is there anyone who doesn’t believe that if

the defendant had met the child [Emily], that sex would not have occurred?”

Stoune objected, and the district court instructed the prosecutor to “move on,”

which the prosecutor did. The jury ultimately found Stoune guilty as charged.

                                         II.

      On appeal, Stoune argues that the district court erred by failing to provide a

curative instruction after sustaining his objection to the prosecutor’s rhetorical

question during rebuttal closing argument. In the same vein, Stoune contends that

the prosecutor’s argument was so improper that it deprived him of a fair trial.


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Stoune specifically claims that the prosecutor’s use of the term “child,” when there

was actually no child in the case, suggested that Stoune was a (statutory) rapist.

      We review claims of prosecutorial misconduct de novo. United States v.

Flanders, 752 F.3d 1317, 1332 (11th Cir. 2014).           To establish prosecutorial

misconduct, the appellant must show that the prosecutor’s remarks were improper

and prejudicially affected his substantial rights. United States v. Eckhardt, 466

F.3d 938, 947 (11th Cir. 2006).         We evaluate the prejudicial impact of a

prosecutor’s statements in the context of the trial as a whole. United States v.

Hernandez, 145 F.3d 1433, 1438 (11th Cir. 1998). “A defendant’s substantial

rights are prejudicially affected when a reasonable probability arises that, but for

the remarks, the outcome of the trial would have been different.” Eckhardt, 466

F.3d at 947. “When the record contains sufficient independent evidence of guilt,

any error is harmless.” Id.

      Here, we find that even if the prosecutor’s remarks were improper, they

were not “so pronounced and persistent that [they] permeate[d] the entire

atmosphere of the trial.” United States v. Weinstein, 762 F.2d 1522, 1542 (11th

Cir. 1985) (quoting United States v. Alanis, 611 F.2d 123, 126 (5th Cir. 1980)).

When taken fairly in context, the prosecutor’s rhetorical question was a lone

response to Stoune’s lack-of-intent argument.       Moreover, the jury knew that




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Stoune was actually communicating with an adult male police officer, rather than a

child, and that there was no real prospect for sex to occur.

      In light of the overwhelming evidence of guilt produced at trial, including as

to Stoune’s intent, there is no reasonable probability that, but for the remarks, the

outcome of the trial would have been different. Eckhardt, 466 F.3d at 947. The

district court also instructed the jury that “only the evidence in the case is to be

considered,” rectifying any error. United States v. Jacoby, 955 F.2d 1527, 1541

(11th Cir. 1992); Weinstein, 762 F.2d at 1542. Stoune did not request an additional

curative instruction. He has failed to establish that his substantial rights were

prejudicially affected.

                                         III.

      Stoune also argues that the district court erred by permitting Sergeant

Gazdick to testify concerning why a subject he met online would provide a false

name. Stoune argues that Sergeant Gazdick’s testimony was inadmissible because

Sergeant Gazdick was not qualified as an expert, so he was allowed to merely

speculate on the topic. Because Sergeant Gazdick’s testimony suggested Stoune’s

consciousness of guilt, Stoune further argues that it was prejudicial.

      We review the district court’s evidentiary ruling for a clear abuse of

discretion, and if we find error, we apply the harmless-error standard. United

States v. Jayyousi, 657 F.3d 1085, 1102 (11th Cir. 2011); United States v.


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Henderson, 409 F.3d 1293, 1300 (11th Cir. 2005). A non-expert witness may give

opinion testimony if the testimony is “(a) rationally based on the witness’s

perception; (b) helpful to clearly understanding the witness’s testimony or to

determining a fact in issue; and (c) not based on scientific, technical, or other

specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 701. We have

held that under Rule 701, a lay witness may testify “based upon [his] particularized

knowledge garnered from years of experience within [a] field.”                    Tampa Bay

Shipbuilding & Repair Co. v. Cedar Shipping Co., 320 F.3d 1213, 1223 (11th Cir.

2003).

       Here, the district court did not clearly abuse its discretion by permitting

Sergeant Gazdick to testify as a layperson. In general, specialized knowledge is

not required to understand that individuals who are knowingly engaged in criminal

activity often provide false names in order to avoid being caught. 1 In this case,

Stoune’s intent was a central issue at trial. Further, Sergeant Gazdick testified that

he had years of relevant experience in his field. In addition to working for the

Internet Crimes Against Children taskforce on cases that involved child

exploitation, child pornography trading, and online enticement of children, he




       1
         Stoune provided a more innocuous reason during his closing argument. Based upon
Stoune’s post-arrest statement and Detective Gazdick’s testimony at trial, Stoune argued that he
was simply engaged in role-playing. The jury rejected his argument.
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stated that he was specifically trained in conducting these types of undercover

investigations online and had been doing such investigations for several years.

      Under these circumstances, we find no error with allowing Detective

Gazdick to offer an opinion as to why an online subject would provide a false

name, especially when Stoune first brought up the topic during cross-examination.

See Jayyousi, 657 F.3d at 1102–03; Tampa Bay Shipbuilding, 320 F.3d at 1223.

We also find that the admission of Detective Gazdick’s testimony on this issue had

little to no influence on the outcome of the case. See Henderson, 409 F.3d at 1300.

As indicated above, there was more than enough evidence to support the jury’s

finding of mens rea, notwithstanding this testimony. Therefore, even if there was

error, we would still decline to reverse. See id.

                                         IV.

      Based upon our careful review of the record and the parties’ briefs, we

conclude that Stoune received a fair trial. Accordingly, we affirm.

      AFFIRMED.




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