                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 17a0611n.06
                                                                                   FILED
                                        No. 17-5107                          Nov 06, 2017
                                                                         DEBORAH S. HUNT, Clerk

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                             )
                                                      )
       Plaintiff-Appellee,                            )
                                                      )
v.                                                    )      ON APPEAL FROM THE
                                                      )      UNITED STATES DISTRICT
MICHAEL SHANE WYATT,                                  )      COURT FOR THE EASTERN
                                                      )      DISTRICT OF TENNESSEE
       Defendant-Appellant.                           )
                                                      )
                                                      )

BEFORE:       BOGGS, BATCHELDER, and BUSH, Circuit Judges.

       ALICE M. BATCHELDER, Circuit Judge. Forty-four-year-old Defendant-Appellant

Michael Shane Wyatt asserts that the jury did not have sufficient evidence to convict him of

attempted coercion and enticement of a minor and attempted sexual exploitation of a child

because he did not believe that the individual to whom he directed sexually explicit messages

was a minor. Consequently, he argues, he did not possess the subjective intent to commit those

crimes. We disagree. We affirm.

       In January 2016, the Tennessee Bureau of Investigation (“TBI”) and the Department of

Homeland Security found a Craigslist ad posted by Wyatt: “Clean attractive well hung in shape

male seeks petite female who would like to be my submissive cum dump today.” The post

included a close-up photograph of an adult penis. On January 29, 2016, Todd Campbell, a

special agent criminal investigator with the TBI, who was posing as a fourteen-year-old girl

named “Lara,” answered the post. His response explained that “Lara” was too young but
No. 17-5107
United States v. Michael Shane Wyatt

“wanted to say hey anyway.”1 Wyatt responded to Special Agent Campbell’s message within

several minutes, asking for pictures, sending six more nude and semi-nude photographs, and

reiterating “[w]anna be my cum dump?” Special Agent Campbell replied, stating that “Lara”

“might be a lil [sic] young,” that “she” did not want to get anyone in trouble, and that “she”

could not send pictures because “she” was “in school right now.” Special Agent Campbell then

told Wyatt, “I’m 14 . . . Is that ok?” Wyatt responded: “Would you want some of what you saw

in the pics? . . . [T]he taboo has me wanting to do something I shouldn’t and wouldn’t normally

do.” Wyatt sent several follow-up messages later that day, asking how the two might meet

“[s]afely,” whether “Lara” could stay out all night or “pass for 19,” and whether it would be

“easier and safer” to meet after school.

        Special Agent Campbell communicated with Wyatt over the next four days and arranged

a meeting between Wyatt and “Lara” at a residence in Chattanooga, Tennessee. During those

communications, Wyatt’s messages descended to further levels of salaciousness. Despite being

informed several more times that “Lara” was a minor, Wyatt continued to send sexually explicit

messages, including descriptions of imagined sexual acts with “Lara” and requests for “private”

pictures and pictures of “Lara’s” unclothed or nearly unclothed backside. On February 2, 2016,

Wyatt arrived at the agreed upon residence; in his car were three individually wrapped condoms

and salt-and-vinegar potato chips that “Lara” had requested he bring. Instead of finding a

fourteen-year-old girl awaiting him, Wyatt found a group of police officers to whom he provided

a voluntary statement, explaining that he did not believe “Lara” was real and that he only visited

the Chattanooga residence to find out who “Lara” was.



1
  The parties stipulated before trial that Wyatt communicated with Special Agent Campbell via email, using an
anonymized email address provided by Craigslist, and text messages sent from Wyatt’s personal cell phone.


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No. 17-5107
United States v. Michael Shane Wyatt

           Wyatt was indicted in the United States District Court for the Eastern District of

Tennessee on two counts: (1) coercion and enticement of a minor, in violation of 18 U.S.C.

§ 2422(b),2 and (2) attempted sexual exploitation of a child, in violation of 18 U.S.C. § 2251(a)

and (e). At trial, Wyatt argued that he did not believe that “Lara” was a minor, but instead that

she may have been law enforcement, a friend playing a joke, someone engaged in fantasy role-

playing, an internet troll, or one of Wyatt’s adult-oriented-website clients.3                       Based on this

argument, Wyatt’s counsel moved for judgment of acquittal pursuant to Federal Rule of Criminal

Procedure 29. The district court denied the Rule 29 motion, and a jury convicted Wyatt of both

counts. Wyatt was sentenced to the statutory minimum sentence of 180 months’ imprisonment.

He timely appealed the denial of his Rule 29 motion.

           “We review de novo the district court’s judgment denying [a] motion for acquittal.”

United States v. Lowe, 795 F.3d 519, 522 (6th Cir. 2015) (citing United States v. Blanchard, 618

F.3d 562, 574 (6th Cir. 2010)). “When a defendant appeals on the basis that the evidence was

insufficient to support a guilty verdict, our role is to ask ‘whether, after viewing the evidence in

the light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.’” United States v. Washington,

715 F.3d 975, 979 (6th Cir. 2013) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “We

do not insert our own findings of fact; rather we give full credit to the responsibility of the jury to

weigh the evidence, to make credibility determinations, and to draw inferences.”                                   Id.


2
  We note that the government charged Wyatt with “coercion and enticement,” but § 2422(b) prohibits the knowing
persuasion, inducement, enticement or coercion of a child. While the government’s decision to charge Wyatt in the
conjunctive is imprecise, “[t]he government may charge in the conjunctive and prove in the disjunctive.” United
States v. Stevenson, 659 F. App’x 221, 222 n.3 (6th Cir. 2016) (citing United States v. Pirosko, 787 F.3d 358, 368
(6th Cir.), cert. denied, 136 S. Ct. 518 (2015)). As explained below, the evidence is sufficient for a reasonable juror
to convict Wyatt under the disjunctive terms of § 2422(b).
3
    Wyatt has worked as a part-time, adult-oriented-website promoter and recruiter since 1998.


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No. 17-5107
United States v. Michael Shane Wyatt

“Circumstantial evidence alone is sufficient to sustain a conviction and such evidence need not

remove every reasonable hypothesis except that of guilt.” Lowe, 795 F.3d at 522–23 (citations

omitted).

         To demonstrate that a defendant coerced and enticed a minor, in violation of 18 U.S.C.

§ 2422(b), the government must prove that (1) the defendant used a means of interstate

commerce to knowingly persuade, induce, entice, or coerce someone under eighteen to engage in

sexual activity or attempted to do so; (2) “the defendant believed the person was under the age of

18”; and (3) “if sexual activity had occurred, the defendant could have been charged with a

criminal offense under state law.”4 United States v. Roman, 795 F.3d 511, 515–16 (6th Cir.

2015) (footnote omitted) (citing United States v. Hart, 635 F.3d 850, 855 (6th Cir. 2011)).

To demonstrate that a defendant sexually exploited a child, in violation of 18 U.S.C. § 2251(a),

the government must prove that a defendant “employ[ed], use[d], persuade[d], induce[d],

entice[d], or coerce[d] any minor to engage in . . . any sexually explicit conduct for the purpose

of producing any visual depiction of such conduct.” A “‘minor’ means any person under the age

of eighteen years.” 18 U.S.C. § 2256(1). Both statutes proscribe attempted violations. See

18 U.S.C. § 2422(b) (“Whoever . . . knowingly persuades, induces, entices, or coerces . . . or

attempts to do so . . . .”); 18 U.S.C. § 2251(e) (“Any individual who violates, or attempts or

conspires to violate[] this section . . . .”). To establish criminal attempt, the government must

prove that the defendant intended to commit the alleged criminal act and that he took a




4
  Wyatt conceded before trial that had he “engaged in sexual activity with a person under the age of 18 in the state of
Tennessee, that activity would have been unlawful sexual activity for which [he] could have been charged with a
criminal offense.” He also stipulated that “the Internet, [his] computer, and [his] cell phone used . . . to transmit the
messages . . . were and are means or facilities of interstate and foreign commerce.” Therefore, we need only
determine whether the evidence was sufficient for a reasonable juror to find that Wyatt believed “Lara” was less
than eighteen years of age.


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No. 17-5107
United States v. Michael Shane Wyatt

substantial step towards committing the crime, beyond mere preparation. See Roman, 795 F.3d

at 517; United States v. Evans, 699 F.3d 858, 867 (6th Cir. 2012).

         Wyatt argues that the district court erred by denying his Rule 29 motion because the

evidence presented at trial was insufficient for any reasonable juror to find that he had the

subjective intent to engage in sexual activity with a minor or to obtain sexually explicit

photographs of a minor.5 The district court did not err by holding that a reasonable juror could

find that Wyatt possessed the subjective intent to commit the two offenses. A reasonable juror

could find that Wyatt believed “Lara” was a minor because his communications to “Lara”

demonstrate that he understood that she was a juvenile and that he recognized the illegality of the

situation. For example, after repeatedly asking for “private” or unclothed pictures, he told

“Lara” that he could not show her pictures to anyone because he would get in trouble and that he

was “scared to say much”; that he wished he were sixteen so he “could be seen” with her; and,

after offering her drugs, that he would “go to prison till [sic] [he] died” if he were caught with

her. Wyatt even appears to have reveled in the situation: “I feel like a dirty old man but I wanna

[sic] make you my dirty little secret.”

         Moreover, in United States v. Harmon, 593 F. App’x 455, 465 (6th Cir. 2014)

(unpublished), we rejected a defendant’s argument that he did not believe that the individual

whom he attempted to persuade to engage in sexual activity was a minor. We stated that:

5
  Wyatt also briefly argues, in the alternative, that the government engaged in entrapment. Wyatt has waived this
argument. First, Wyatt’s opening brief addresses entrapment only in summary fashion. “Issues adverted to in a
perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived. It is not
sufficient for a party to mention a possible argument in [a] skeletal way, leaving the court to put flesh on its bones.”
United States v. Fowler, 819 F.3d 298, 309 (6th Cir. 2016) (alteration in original) (quoting El–Moussa v. Holder,
569 F.3d 250, 257 (6th Cir. 2009)). Second, even if Wyatt had sufficiently articulated an entrapment argument on
appeal, he failed to raise entrapment in his Rule 29 motion from which he appeals. “Specificity in a Rule 29 motion
is not required”; however, “[w]hen a defendant makes a motion on specific grounds . . . , all grounds not specified in
the motion are waived.” United States v. Montgomery, 379 F. App’x 527, 530 (6th Cir. 2010) (quoting United
States v. Wesley, 417 F.3d 612, 617 (6th Cir. 2005)); see United States v. Dandy, 998 F.2d 1344, 1356–57 (6th Cir.
1993).


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No. 17-5107
United States v. Michael Shane Wyatt

        To the extent that [the defendant] argues that he did not believe that the individual
        in question was actually a minor because his original internet ad was aimed at
        women in the age range of 18 to 24 years, [his] argument is without merit. The
        evidence presented by the Government includes Agent Spadafora’s repeatedly
        mentioning the age of his fictitious daughter, and [the defendant’s] repeatedly
        confirming interest in meeting her for a sexual encounter. . . . [The defendant’s]
        acknowledged awareness of the illegal nature of sexual encounters with minors
        also indicates that [he] was aware that [the “daughter”] was a minor.
        [The defendant’s] suggestions to Agent Spadafora for disguising his intent to
        engage in sexual encounters with minors, and [the defendant’s] concerns about
        being caught in an illegal enterprise, provide further support for this finding.

Id. Similarly, in our case a reasonable juror could find that Wyatt believed “Lara” was a minor

because, after being repeatedly informed of “Lara’s” age, Wyatt sent sexually explicit messages

to “Lara,” instigated further conversation, sought “private” or unclothed pictures of “Lara,”

inquired about “Lara’s” sexual preferences and how and when they might “safely” meet, and

expressed concern about getting caught. See also United States v. Lebowitz, 676 F.3d 1000,

1013–14 (11th Cir. 2012) (finding sufficient evidence that defendant believed K.S. was fifteen

years old because internet chats demonstrated that defendant was aware of K.S.’s age and

“continued to entice” him). The district court, therefore, did not err by denying Wyatt’s Rule 29

motion because a reasonable juror could find that Wyatt believed that “Lara” was a minor and

that Wyatt committed each element of the offenses charged.

        We AFFIRM.




                                                -6-
