     Case: 10-60996     Document: 00511589288         Page: 1     Date Filed: 08/31/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          August 31, 2011
                                     No. 10-60996
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

LANCE A. D’ANDREA,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 1:08-CR-118-1


Before SMITH, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Lance A. D’Andrea appeals his jury conviction for using facilities in
interstate commerce to attempt to persuade, induce, and entice a person he
believed was a minor to engage in criminal sexual activity, in violation of 18
U.S.C. § 2422(b). An undercover law-enforcement officer posed as a 14-year-old
girl (the minor). D’Andrea contends: the district court did not have subject-
matter jurisdiction because D’Andrea’s intrastate use of the Internet and
cellular-telephone services did not satisfy the interstate nexus requirement of

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 10-60996

§ 2422(b); and the evidence at trial about whether D’Andrea believed the minor
to be younger than 18 years was insufficient to sustain the jury’s verdict. Each
claim fails.
      To prove an attempt to violate § 2422(b), the Government must establish
beyond a reasonable doubt that defendant used a facility or means of interstate
commerce to intentionally “persuade, induce, entice, or coerce a person whom he
believed to be a minor into illegal sexual contact and took a substantial step
toward that persuasion or enticement”. United States v. Barlow, 568 F.3d 215,
219-20 (5th Cir. 2009) (internal quotation marks, brackets, and citation omitted)
(emphasis added). D’Andrea does not dispute that he used Yahoo Messenger
and cellular-telephone text messaging to intentionally persuade, induce, and
entice the minor to engage in sexual activity and that he took a substantial step
toward that persuasion or enticement.
      Before trial, D’Andrea moved to dismiss the indictment, asserting: the
district court lacked jurisdiction because he communicated with the minor
entirely within the state of Mississippi. The district court denied the motion, as
well as when D’Andrea renewed it at trial.
       A district court’s determination of subject-matter jurisdiction is reviewed
de novo. E.g., Gasch v. Hartford Accident & Indem. Co., 491 F.3d 278, 281 (5th
Cir. 2007). The facility or means of interstate commerce provision is an element
of the offense; but interstate communication is not required by the statute.
Accordingly, D’Andrea’s challenge to no evidence showing an interstate
communication is irrelevant regarding jurisdiction. Likewise, his reliance on
United States v. Lopez, 514 U.S. 549 (1995) is inapposite. Lopez concerned the
constitutionality of a federal statute under the commerce clause, and D’Andrea
has not challenged the constitutionality of § 2422(b).
      Regarding his insufficient-evidence challenge, D’Andrea asserts: based on
the evidence presented at trial, no rational jury could have found that he
believed the minor was younger than 18 years. D’Andrea moved for a judgment

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                                  No. 10-60996

of acquittal at the close of the Government’s case-in-chief and renewed the
motion at the close of his case. Nevertheless, he failed to renew the motion after
the Government presented its rebuttal witness, and he did not file a post-verdict
motion. Therefore, the evidence is reviewed only to determine whether there has
been “a manifest miscarriage of justice, which is found if the record is devoid of
evidence pointing to guilt”. United States v. Green, 293 F.3d 886, 895 (5th Cir.
2002) (citation and internal quotation marks omitted).
      The record is not devoid of evidence that D’Andrea believed the minor was
younger than 18 years. A Sheriff’s Deputy testified that the minor’s Yahoo
Messenger profile stated she was 14 years old. Although D’Andrea disputed the
Deputy’s testimony on this point, and noted that Yahoo Messenger members had
to be 18 years old to create a profile and enter a chat room, D’Andrea did not
dispute that the minor told him repeatedly that she was 14 years old. Moreover,
the chat and text-messaging transcripts offer no indication that D’Andrea
believed he and the minor were role playing.
AFFIRMED.




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