                                                                                  [PUBLISH]


                      IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                                                            FILED
                                                                    U.S. COURT OF APPEALS
                                 ________________________             ELEVENTH CIRCUIT
                                                                           05/18/99
                                        No. 97-3552                    THOMAS K. KAHN
                                 ________________________                   CLERK

                             D. C. Docket No. 97-140-CR-ORL-18

UNITED STATES OF AMERICA,
                                                                              Plaintiff-Appellee,

                                             versus

BILLY CHARLES BURGESS,
a.k.a. Brad, a.k.a. Landofahz,
                                                                           Defendant-Appellant.

                                 ________________________

                          Appeal from the United States District Court
                              for the Middle District of Florida
                               _________________________
                                       (May 18, 1999)

Before BARKETT, Circuit Judge, and KRAVITCH and MAGILL*, Senior Circuit Judges.

BARKETT, Circuit Judge:

       Billy Burgess appeals his conviction and sentence on charges arising from arrangements

he made to rendezvous for sexual purposes in another state with a person he met over the

internet

and whom he knew only as “Maggie284,” a thirteen-year-old girl. Burgess alleges multiple

constitutional errors relating to his indictment and conviction under 18 U.S.C. §§ 2423(b) &

____________________
*Honorable Frank J. Magill, Senior U.S. Circuit Judge for the Eighth Circuit, sitting by
designation.
2422(b), including violations of his First, Fifth, and Sixth Amendment rights, and also argues

that the district court acted arbitrarily and capriciously by establishing his base offense level at

twenty rather than at fifteen, which is the level set by the United States Sentencing Guidelines

(“U.S.S.G.”) for the crime of statutory rape. See U.S.S.G. § 2A3.2. We reverse.

       I. Background

       At approximately 11 p.m. on Sunday, March 30, 1997, Billy Burgess logged onto an

America Online sexually-oriented internet “chatroom” for men interested in “barely legal

females.” Using the screen name “LandofAhz,” Burgess exchanged sexually explicit messages

until close to midnight with another chatroom participant identified by the screen name of

Maggie284. Maggie284 described herself as a thirteen-year-old girl, but in reality was a twenty-

six-year-old man named Randall Sluder, who had created Maggie284 with the intention of

identifying and reporting to the authorities individuals who use the internet to engage in

“cybersex” with underage teenagers.1 Throughout this conversation, Maggie284 referred

repeatedly to her “Mom,” misspelled words, and frequently mentioned her age, weight (ninety-

two pounds), and inexperience. At some point during the exchange, LandofAhz told Maggie284

that in two weeks’ time he was scheduled to be in Orlando, where Maggie284 claimed to live,

and suggested that they meet in person. Burgess asked Maggie284 what clothing size she wore

and, on learning it was size ten, told her he would arrive in a limousine bearing lingerie in her




       1
        Sluder was on probation at the time for the felony of fleeing and attempting to elude a
police officer.

                                                  2
size, champagne, and other gifts. Maggie284 asked him to “email me,” and Burgess promised to

do so, although after he logged off he made no effort to initiate further interaction.

       Sluder subsequently printed out the conversation between Maggie284 and LandofAhz

and delivered it to the police. The officers then took over the “identity” of Maggie284 and, just

before noon on Monday, April 14, e-mailed Burgess, asking if he was still planning to come to

Orlando. Burgess answered in the affirmative. Over the next few days, Burgess and Maggie284

exchanged e-mails, and ultimately arranged a meeting at 8 p.m. on April 16, 1997 behind the

Enterprise Hotel in Orlando. As part of these arrangements, Maggie284 e-mailed Burgess a

phone number where she could be reached, a number that in reality connected to an undercover

telephone at the Kissimmee Police Department. At the specified time, Burgess called the

number, and a police officer who often worked undercover as a child answered the phone.

Speaking in a manner consistent with that of a thirteen-year-old girl, the officer confirmed the

meeting time and place, and Burgess reiterated his promise to be driving a limousine. During

this conversation, Burgess again asked what size clothing he should buy, and was told size

twelve. Meanwhile, the police subpoenaed the records of America Online, which disclosed that

the screen name “LandofAhz” was assigned to B.C. Burgess of Kansas City, Missouri. On the

evening of April 16, 1997, Burgess arrived in Orlando and made his way to the Enterprise Hotel

in a rented Lincoln Town Car, bearing no champagne, lingerie, or gifts of any kind. At

approximately 8:10 p.m., moments after he pulled into the parking lot, he was arrested.

       Burgess was initially charged under Florida law with soliciting a minor. These charges

were eventually dropped, and Burgess was charged in federal court under a superceding

indictment with one count of traveling in interstate commerce with intent to engage in a sexual


                                                  3
act with a juvenile in violation of 18 U.S.C. § 2423(b), and two counts of using a facility

affecting interstate commerce knowingly to entice a juvenile to engage in sexual acts in violation

of 18 U.S.C. § 2422(b).2 At trial, Burgess's attorney requested that the court instruct the jury that

no adverse inference could be drawn from Burgess's decision not to testify. At the close of the

charge, the court asked if either side had any objections, and defense counsel objected that the

requested cautionary instruction had been omitted from the charge. The court responded that it

had been included “in about the third instruction,” to which Burgess’s attorney replied, “I didn’t

hear that. But if you gave it, I apologize.” The district court did not order any portion of the

charge read back to confirm its belief that the requested instruction had been read, and it was

later shown that the instruction had in fact been omitted.

       The jury spent five hours deliberating after the two-day trial. During the course of its

deliberations, the jury sent a question to the judge, asking for further instruction on the law of

entrapment. The judge responded that “[t]he law on entrapment is correctly before you.”



       2
        The statutes under which Burgess was charged read:
               (b) Travel with intent to engage in sexual act with a juvenile. – A person
       who travels in interstate commerce, or conspires to do so . . . for the purpose of
       engaging in any sexual act (as defined in section 2246) with a person under 18
       years of age that would be in violation of chapter 109A if the sexual act occurred
       in the special maritime and territorial jurisdiction of the United States shall be
       fined under this title, imprisoned not more than ten years, or both.
18 U.S.C. § 2423
               (b) Whoever, using any facility or means of interstate or foreign
       commerce, including the mail, or within the special maritime and territorial
       jurisdiction of the United States, knowingly persuades, induces, entices, or
       coerces any individual who has not attained the age of 18 years to engage in
       prostitution or any sexual act for which any person may be criminally prosecuted,
       or attempts to do so, shall be fined under this title or imprisoned not more than ten
       years, or both.
18 U.S.C. § 2422.

                                                  4
Burgess was convicted on all counts. At sentencing, defense counsel analogized Burgess's

offense to statutory rape and argued that the base offense level should be set at fifteen. See

U.S.S.G. § 2A3.2 (establishing a base offense level of fifteen for the crime of statutory rape).

The prosecution, labeling Burgess’s crime as one of violence, argued that the appropriate base

offense level was twenty-seven. See U.S.S.G. § 2A3.1 (establishing a base offense level of

twenty-seven for the crime of sexual abuse involving intent to use force, threat of death, serious

bodily injury or kidnapping). The district court set the base offense level at twenty, and

sentenced Burgess to thirty-three months’ imprisonment, two years of supervised release, and a

$300.00 special assessment, plus the cost of incarceration. Burgess now appeals his conviction

and sentence.

       II. Discussion

       Burgess raises a host of arguments on appeal. However, because we find that the district

court committed reversible error when it failed to deliver the requested cautionary instruction

regarding Burgess’s decision not to testify, we address this claim only.3

       In Carter v. Kentucky, 450 U.S. 288 (1981), the Supreme Court held that “the Fifth

Amendment requires that a criminal trial judge must give a ‘no-adverse-inference’ jury

instruction when requested by a defendant to do so.”4 Id. at 300; see also United States v. Russo,


       3
         We do, however, note that at oral argument the government was unable to provide any
support for its analogy of Burgess’s crime to sexual abuse involving intent to use force, threat of
death, serious bodily injury or kidnapping. See U.S.S.G. § 2A3.1. We are thus hard pressed to
see any reason why the appropriate analogy for sentencing purposes for the crime here
committed would not have been statutory rape. See U.S.S.G. § 2A3.2.
       4
         The Supreme Court has also held that this same obligation is imposed on the courts by
federal statute. See Bruno v. United States, 308 U.S. 287, 292-93 (1939) (holding that
defendants have the right under 18 U.S.C. § 3481 to request and receive a cautionary instruction

                                                 5
796 F.2d 1443, 1454 (11th Cir. 1986) (applying the rule established in Carter); United States v.

Richardson, 764 F.2d 1514, 1529 (11th Cir. 1985) (“The jury must be told to draw no adverse

inference from a refusal to testify; defendants may have that instruction as of right.”) (citing

Carter, 450 U.S. at 301).

       The government concedes this point. It further concedes, as it must, that despite

Burgess’s timely request, the district court included no such cautionary instruction in the jury

charge, and that Burgess’s counsel timely raised an objection to this omission. The government

nonetheless argues that Burgess is entitled to no relief on this claim because, even though the

instruction was properly requested and its omission properly raised, Burgess’s attorney did not

press the point any further after the court said the requested instruction had been given.

       The law is clear that, to be given effect, “an objection must be framed with precision

sufficient to inform the trial judge as to the matter about which the objection is raised and the

grounds therefor.” United States v. Haynes, 573 F.2d 236, 241 (5th Cir. 1978)5; see also United

States v. Greenfield, 554 F.2d 179, 186 (5th Cir. 1977) (“The trial court must be apprised of the

basis for objection with sufficient particularity to allow an informed decision to be made on the

legal issue involved.”). The idea behind this requirement is that the district court should be




that failure to testify in one’s own defense creates no negative presumption); United States v.
Bain, 596 F.2d 120, 122 (5th Cir. 1979) (same).
       5
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.



                                                  6
given “the chance to correct errors before the case goes to the jury.” United States v. Sirang, 70

F.3d 588, 594 (11th Cir. 1995).

        Burgess’s attorney properly requested that the jury be instructed to draw no adverse

inference from Burgess’s decision not to testify. After delivery of the jury charge, Burgess’s

attorney objected that despite this earlier request, the court still had failed to instruct the jury on

this matter. The court responded that it believed the instruction had been included. The

government’s assertion that the defense failed to meet its burden of raising a sufficient objection

thus hinges on the claim that, even though the defendant had timely requested the instruction and

had timely objected when it was not given, defense counsel should have insisted that the court

read back the charge to confirm that it in fact had been delivered. We find this argument

unpersuasive. From the exchange that ensued after the defense first raised the issue, it is clear

that the court had understood the substance of the objection and had “the chance to correct the

error before the case [went] to the jury.” Sirang, 70 F.3d at 594. The defense therefore met its

burden and preserved the objection for appeal.

        Although the district court may have intended to give the instruction, the court failed to

ensure that it had been given when the omission was brought to the court’s attention, and the

importance of the Fifth Amendment protection afforded by a “no-adverse-inference” instruction

is not diminished in such circumstances. “Jurors are not experts in legal principles; to function

effectively, and justly, they must be accurately instructed in the law.” Carter, 450 U.S. at 302.

And, because “‘[t]oo many, even those who should be better advised, view [the Fifth

Amendment] privilege as a shelter for wrongdoers [and] too readily assume that those who

invoke it are . . . guilty of crime,’ . . . [s]uch instructions are perhaps nowhere more important


                                                   7
than in the context of the Fifth Amendment privilege against compulsory self-incrimination.” Id.

(quoting Ullman v. United States, 350 U.S. 422, 426 (1956)). Once Burgess timely requested the

instruction and raised an objection sufficient to put the court on notice of its omission from the

jury charge, it fell to the court to correct the error. Not even the good faith belief that no error

had occurred relieves the court of this obligation. The court elected not to pursue the matter

further, and the defense is not required to pay the price of that decision.

       In the alternative, the government argues that, because the district court thoroughly

instructed the jurors concerning the presumption of innocence and the burden of proof, the harm

of failing to deliver the requested “no-adverse-inference” instruction is somehow overcome. The

Supreme Court, however, has flatly rejected this argument. See Carter, 450 U.S. at 304 (“The

other trial instructions and arguments of counsel [regarding the presumption of innocence and

the burden of proof] were no substitute for the explicit [no-adverse-inference] instruction that the

petitioner’s lawyer requested.”).

       We turn now to the question of the appropriate remedy. In United States v. Bain, 596

F.2d 120 (5th Cir. 1979), the former Fifth Circuit held that a court’s failure to honor its

obligation to deliver a requested no-adverse-inference instruction “rises to the level of reversible

error.” Id. at 122 (following Bruno v. United States, 308 U.S. 287 (1939), in holding that courts

are required under federal statute6 to deliver such an instruction when so requested by the

defendant). However, Supreme Court precedent decided post-Bain requires that we decline to

follow Bain insofar as it requires automatic reversal of the judgment in this case. See Cottrell v.


       6
         See 18 U.S.C. § 3481 (“In trial of all persons charged with the commission of offenses
against the United States . . . the person charged shall, at his own request, be a competent
witness. His failure to make such a request shall not create any presumption against him.”).

                                                   8
Caldwell, 85 F.3d 1480, 1485 (11th Cir. 1996) (“Where prior panel precedent conflicts with a

subsequent Supreme Court decision, we follow the Supreme Court decision.”). In Arizona v.

Fulminante, 499 U.S. 279 (1991), the Court established the circumstances under which courts

are to apply the constitutional harmless error standard. In that case, the Court identified certain

“structural defects” – among them “the total deprivation of the right to counsel” and “a judge

who was not impartial” – which affect “the entire conduct of the trial from beginning to end,”

Fulminante, 499 U.S. at 309, and distinguished such defects from “trial error[s]” which occur

“during the presentation of the case to the jury.” Id. at 307. The Court explained that, although

errors rising to the level of structural defects “defy analysis by ‘harmless error’ standards,” id. at

309,7 trial errors may “be quantitatively assessed in the context of other evidence presented in

order to determine whether [they were] harmless beyond a reasonable doubt.” Id. at 307-08.

Fulminante thus requires that, in the event of trial error, we apply the harmless error standard to

determine whether the commission of that error demands that the conviction be reversed.

       Although the Court has not had occasion to classify the precise error at issue here, we

believe that under the terms set out in Fulminante, the failure of a court upon proper request to

deliver a no-adverse-inference instruction would be classified as a “classic ‘trial error,’” id. at

309, able to “be quantitatively assessed in the context of other evidence presented in order to

determine whether its admission was harmless beyond a reasonable doubt.” Id. at 307-08. Not

only have “most constitutional errors . . . been held amenable to harmless-error analysis,”



       7
        See also Fulminante, 499 U.S. at 310 (“‘Without these basic protections, a criminal trial
cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no
criminal punishment may be regarded as fundamentally fair.’”) (quoting Rose v. Clark, 478 U.S.
570, 577-78 (1986)).

                                                  9
Sullivan v. Louisiana, 508 U.S. 275, 279 (1993) (citing Fulminante), but the Court held in

Kentucky v. Whorton, 441 U.S.786, 789-90 (1979), that the trial court’s failure upon proper

request to instruct the jury on the presumption of innocence was appropriately subject to

harmless error analysis. See also Fulminante, 499 U.S. at 306-07 (including Whorton among the

many cases cited to demonstrate the “wide range of errors” to which “the Court has applied

harmless-error analysis”). Serious error though it is, a court’s failure to deliver a requested no-

adverse-inference instruction does not rise to the level of an error like the “total deprivation of

the right to counsel,” in the face of which “‘no criminal punishment may be regarded as

fundamentally fair.’” Fulminante, 499 U.S. at 310 (quoting Rose, 478 U.S. at 578). This factor,

considered alongside the Court’s discussion in Fulminante and its holding in Whorton, leads us

to conclude that a trial court’s failure to deliver a requested “no-adverse-inference” instruction

must be analyzed under the standard of constitutional harmless error. We therefore believe that

superceding Supreme Court precedent requires that we decline to follow Bain to the extent it

holds that a verdict reached following the commission of such a constitutional error is

automatically subject to reversal.8

       In Chapman v. California, 386 U.S. 18 (1967), the Court held that “before a federal

constitutional error can be held harmless, the court must be able to declare a belief that it was

harmless beyond a reasonable doubt.” Id. at 24. In other words, “the court must be convinced

beyond a reasonable doubt that the error did not contribute to the defendant's conviction.” Cape

v. Francis, 741 F.2d 1287, 1294 (11th Cir. 1984) (citing Chapman). As Justice Scalia explained



       8
         Because no statutory argument was raised on appeal, we do not decide whether harmless
error review is also appropriate for like violations of § 3481.

                                                 10
in Sullivan v. Louisiana, 508 U.S. 275 (1993), the inquiry “is not whether, in a trial that occurred

without the error, a guilty verdict would surely have been rendered, but whether the guilty

verdict actually rendered in this trial was surely unattributable to the error.” Id. at 279 (emphasis

in the original). This Court has understood this inquiry to require that we “review the facts of

the case and the evidence adduced at trial to determine . . . whether, absent the so-determined

unconstitutional effect, the evidence remains not only sufficient to support the verdict but so

overwhelming as to establish the guilt of the accused beyond a reasonable doubt.” Cape, 741

F.2d at 1294 (internal quotation marks and citations omitted).

       After thorough examination of the record before us, we find ourselves unable to conclude

that the evidence adduced in this case was “not only sufficient to support the verdict but so

overwhelming as to establish the guilt of the accused beyond a reasonable doubt.” Id. As a

result, we are not convinced beyond a reasonable doubt that the district court’s error in failing to

deliver the requested cautionary instruction did not contribute to the conviction.

       Two elements of the government’s case at trial were supported by evidence arguably

insufficient to overcome Chapman’s harmless error standard and would have led to an acquittal

had they been resolved differently by the jury: the rebuttal of Burgess’s entrapment defense,9 and


       9
         It is well settled that, “[w]here the Government has induced an individual to break the
law and the defense of entrapment is at issue, . . . the prosecution must prove beyond reasonable
doubt that the defendant was disposed to commit the criminal act prior to first being approached
by Government agents.” United States v. Jacobson, 503 U.S. 540, 548-49 (1992); see also
United States v. Chirinos, 112 F.3d 1089, 1102 (11th Cir. 1997) (“A defendant is not entitled to
an entrapment instruction unless he first shows ‘some evidence, more than a scintilla, that
government agents induced him to commit the offense.’ Once the defendant meets this initial
burden, ‘the question of entrapment becomes a factual one for the jury to decide. In that
situation the defendant is entitled to have his defensive theory of the case put before the jury
with the appropriate instructions from the trial judge.’”) (quoting United States v. Timberlake,
559 F.2d 1375, 1379 (5th Cir.1977)).

                                                 11
the intent requirement for violations of §§ 2423(b) & 2422(b), which here required a finding that

Burgess believed that Maggie284 really was a thirteen-year-old girl and not simply an adult

playing that role. Consideration of the evidence adduced at trial as to the first of these two

elements – the government’s rebuttal of Burgess’s entrapment defense – is sufficient to convince

us that the trial error in question was not harmless beyond a reasonable doubt. Cape, 741 F.2d

at 1294. For, although the jury found against Burgess on the entrapment issue, there was

evidence before the jury sufficient to rebut the suggestion that the evidence against him on this

issue was “overwhelming,” and thus we cannot say beyond a reasonable doubt that the jury

verdict was not affected by the trial court’s failure to give a no-adverse-inference instruction.

See id. As the jury instruction reflected, “[a] person is entrapped when he is induced or

persuaded by law enforcement officers or their agents to commit a crime that he had no previous

intent to commit.” And as was shown by the evidence at trial, despite Burgess’s promise at the

end of the initial internet encounter to email Maggie284 soon, after he logged off he initiated no

further contact. In fact, it was not until the Kissimmee police posed as Maggie284 and

themselves renewed contact on April 14, asking whether Burgess “was still coming to Orlando

soon,” that Burgess and “Maggie” began making arrangements to meet. That Burgess did not

initiate contact after the initial exchange represents evidence to support the conclusion that he

had no intention at that time of actually trying to meet Maggie284 in person, and that he would

not have committed the crime had the police not induced him to do so.10



       10
          The jury also knew that Randall Sluder was on probation at the time he embarked on his
mission to root out adults using the internet to solicit sex with minors, a fact which might have
raised a question as to Sluder’s claim that he was acting independently at the time, and thus as to
whether Burgess’s initial contact with Maggie284 was orchestrated by an “agent” of the police.

                                                 12
       That the evidence that Burgess was not entrapped was less than “overwhelming” was

clearly demonstrated by the behavior of the jury. The single communication made to the court

by the jury during the course of its deliberations was a request for further instruction on the law

of entrapment. Specifically, the foreman wrote: “Need clarification on entrapment, the jury

instruction seems contradictory. There is some reasonable doubt that the Defendant would have

pursued this further if the police did not send the first E-mail on 4/11/97, is this nothing more

than the Govt. offering an opportunity.”11

       These factors, and the jury’s question in particular, indicate that the members of the jury

did not find the evidence that Burgess had not been entrapped to be “overwhelming,” see Cape,

742 F.2d 1294, and that in fact they had doubts about its sufficiency. These doubts might well

have been resolved one way or the other had Burgess himself testified. It is thus not

unreasonable to imagine that the jurors, not having been instructed to draw no adverse inference

from Burgess’s decision not to testify, resolved their doubts against him because of his failure to

take the stand in his own defense. It is therefore impossible to say that “the guilty verdict

actually rendered in this trial was surely unattributable to the error,” Sullivan, 508 U.S. at 279,

and thus that the district court’s failure upon proper request to deliver a cautionary instruction to

the jury regarding the defendant’s right not to testify was harmless beyond a reasonable doubt.

       There is also a question whether the evidence adduced at trial as to the second

questionable element of the government’s case – whether Burgess really believed Maggie284 to

be underage – was of sufficient strength to overcome the Chapman standard for the harmlessness



       11
         To this, the court responded: “The law on entrapment is correctly before you. If you
perceive a contradiction you must collectively resolve it.”

                                                 13
of constitutional error.12 Although the jury’s verdict indicated a finding against Burgess on the

question of intent, the jury also had before it evidence tending to suggest that Burgess did not

really believe that Maggie284 was a thirteen-year-old girl, including the fact that at least two of

the contacts between Burgess and Maggie284 were made at times – between 11 p.m. and

midnight on a school night, and 11:46 a.m. on a school day – that a thirteen-year-old would be

unlikely to be surfing the internet; and the fact that Burgess asked on two separate occasions

what size clothing Maggie wore, and was given two different answers, of which both – size ten

and size twelve – reflected sizes more commonly worn by adult women than by ninety-two-

pound girls. We need not, however, determine whether the weight of this countervailing

evidence on the question of intent was sufficient to overcome Chapman’s harmless error

standard, because our review of the facts of the case and the evidence adduced at trial as to the

entrapment issue leads us to conclude that the error committed in this case was not harmless

beyond a reasonable doubt.

       Accordingly, we hereby REVERSE Burgess’s conviction, VACATE his sentence, and

remand this case to the district court for further proceedings consistent herewith.




       12
          Upon retrial, the district court and the parties would do well to address the effect of the
Supreme Court’s decision in United States v. X-Citement Video, Inc., 115 S. Ct. 464 (1994), on
the statutes at issue in this case. By resolving whether these statutes require Burgess to have
known or believed that Maggie284 was under the age of eighteen, the district court will be in a
better position to resolve the parties’ differences over the phrasing of the jury instructions, the
evidence required to support a conviction, and the constitutional implications of Burgess’s
prosecution.

                                                 14
