                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-1508
                                   ___________

United States of America,             *
                                      *
           Plaintiff – Appellee,      *
                                      * Appeal from the United States
     v.                               * District Court for the
                                      * Western District of Arkansas.
Gregg Michael Langley,                *
                                      *
           Defendant – Appellant.     *
                                 ___________

                             Submitted: September 22, 2008
                                Filed: December 10, 2008
                                 ___________

Before BYE, BEAM, and COLLOTON, Circuit Judges.
                           ___________

BYE, Circuit Judge.

      Gregg Michael Langley challenges his convictions for traveling in interstate
commerce for the purpose of engaging in illicit sexual conduct with a minor, and
using a means of interstate commerce to persuade, induce, entice, or coerce a minor
to engage in sexual activity for which a person could be charged with a crime. We
affirm.

                                         I

      In February 2006, then fourteen-year-old J.C., who was living in Missouri, was
approached online by then thirty-year-old Langley, who was living in Arkansas. Via
instant messenger, J.C. chatted online with Langley using two different Yahoo! user
profiles. Langley also asked J.C. for her phone number, and they spoke on the phone.

       Initially, J.C.'s online profiles listed her age as eighteen and twenty-one years
old. J.C. selected these ages because Yahoo! requires an individual to be eighteen
years old to create a profile. After J.C. and Langley began communicating, J.C.
changed one of her Yahoo! profiles to reflect her true age, fifteen years old. Langley
noticed this change, and said, "I thought you were 18." J.C. responded, "I told you
that, but I'm really 15." Langley responded, "Just don't tell nobody. I don't want to
get in trouble."

       When the Internet chats and phone calls first began, they were casual
conversations about work and school, but they turned sexual. Langley talked about
J.C. coming to his house in Arkansas, and the sexual acts he wanted to do with and to
J.C., including J.C. performing oral sex on him.

       One time when Langley called J.C.'s grandmother's house to talk to J.C., J.C.'s
stepmother, Ashley Meyers, answered the phone. Langley thought he was talking to
J.C., and Meyers pretended to be her. Meyers believed Langley to be an older man
due to his voice, and was disturbed by the conversation, which included Langley
saying he missed J.C. and asking for more photographs of her. The next morning,
Meyers confronted J.C., who admitted she was communicating with a grown man.
Meyers called the local police, who advised her to contact Detective Jim Murray with
the Diamond Missouri Police Department because he specialized in investigating
online crimes.

       On April 21, 2006, Detective Murray, posing as J.C., began chatting online with
Langley. Langley requested they meet, and they arranged to meet that night at
Blimpie's in Jane, Missouri. During the Internet chat, Langley said J.C. could spend
the night at his home, and would "have more fun than u could imagi[n]e."


                                          -2-
       When Langley arrived at Blimpie's to rendevous with J.C., he saw a police
officer and drove away because he was "scared." After the failed meeting, Langley
and Detective Murray chatted online again. Langley again discussed the sexual
activities he wanted to perform with J.C. They decided to meet later in the week.

      During an online chat on April 23, 2006, Langley talked about how much he
wanted J.C. to perform oral sex on him and to have sexual intercourse with her. They
arranged to meet at the EZ Mart in Bentonville, Arkansas. Detective Murray
suggested they celebrate J.C.'s fifteenth birthday when they met. Langley stated he
thought she was fifteen now, and asked how old she was turning. Detective Murray
confirmed J.C. was turning sixteen, and thus was currently fifteen.

      On April 28, 2006, Bentonville police officers waited for Langley at the EZ
Mart in Bentonville, Arkansas. Langley was told J.C. would be in a white truck, and
a decoy truck was in the parking lot. He pulled into the parking lot, stopped next to
the decoy truck, and then drove away. Bentonville Police Department officers
stopped Langley and arrested him.

      That same day, Bentonville police officers executed a search warrant at
Langley's apartment and seized his computer. On Langley's computer, the officers
found eight photographs of a nude to partially-nude girl who appeared to be less than
eighteen years old. Five of the photographs depicted this apparent minor engaging
in sexually explicit conduct. The girl in these photographs was never identified.

       Langley was indicted for traveling in interstate commerce for the purpose of
engaging in illicit sexual conduct with a minor in violation of 18 U.S.C. § 2423(b),
and using a means of interstate commerce to persuade, induce, entice, or coerce a
minor to engage in sexual activity for which a person could be charged with a crime
in violation of 18 U.S.C. § 2422(b).



                                         -3-
       Prior to trial, the government filed a Notice of Intent to Introduce 404(b)
Evidence, seeking permission to admit the eight photographs found on Langley's
computer. Langley filed a motion the following day to exclude such evidence, which
the district court1 denied.

      A four-day jury trial commenced on August 27, 2007. During trial, the
photographs were admitted with a limiting instruction that they were only admissible
to show Langley's motive, opportunity, intent, preparation, plan, knowledge, or
absence of mistake or accident. The jury found Langley guilty on both counts.

      Langley was sentenced to 78 months imprisonment on each count, to run
concurrently, a five-year term of supervised release, a $10,000 fine, and a $200 special
assessment. This appeal followed.

                                           II

       On appeal, Langley seeks to overturn the guilty verdict because: (a) the district
court improperly admitted the eight photographs of an apparent minor; and (b) there
was insufficient evidence to find him guilty on either count.

                                           A

       We do not reach the issue whether the district court erred in admitting the
photographs of an apparent minor because, regardless of whether an error actually
occurred, any error was harmless. We review the district court's decision to admit
evidence for abuse of discretion. United States v. Lucas, 521 F.3d 861, 865 (8th Cir.
2008). "We will reverse a conviction only when an improper evidentiary ruling has
affected substantial rights or had more than a slight effect on the verdict." United

      1
        The Honorable Jimm L. Hendren, United States District Judge for the Western
District of Arkansas.

                                          -4-
States v. Cannon, 475 F.3d 1013, 1023 (8th Cir. 2007) (internal quotation marks
omitted). "An evidentiary error is harmless when, after reviewing the entire record,
we determine that the substantial rights of the defendant were unaffected, and that the
error did not influence or had only a slight influence on the verdict." United States v.
McPike, 512 F.3d 1052, 1055 (8th Cir. 2008) (internal quotation marks omitted).

       We do not overturn Langley's conviction because any asserted error by the
district court was harmless. The case against Langley was strong. Viewing the
evidence in favor of the verdict, it demonstrates Langley believed J.C. was below the
age of consent (discussed infra), used a means of interstate commerce to persuade and
induce her to engage in illegal sexual acts, and traveled across state lines for the
purpose of engaging in illegal sexual acts with her. Therefore, irrespective of whether
the district court erred in admitting the photographs, such error was harmless.

                                           B

      There was sufficient evidence to convict Langley on both counts in the
indictment. Langley argues there was insufficient evidence because it was "unclear"
whether he knew J.C. was under the age of sixteen. J.C.'s testimony, Langley's
behavior evidencing a consciousness of guilt, and the transcripts of the Internet chats
between J.C. and Langley, however, are sufficient evidence for a reasonable jury to
conclude Langley believed J.C. to be under the age of sixteen.

       We review "the sufficiency of the evidence de novo, viewing evidence in the
light most favorable to the government, resolving conflicts in the government’s favor,
and accepting all reasonable inferences that support the verdict." United States v.
Piwowar, 492 F.3d 953, 955 (8th Cir. 2007). We will "reverse only if no reasonable
jury could have found the defendant guilty beyond a reasonable doubt." United States
v. Birdine, 515 F.3d 842, 844 (8th Cir. 2008).



                                          -5-
        Both offenses with which Langley was charged require the government to
demonstrate he believed J.C. to be under the age of sixteen. The § 2422(b) offense
is "limited to conduct that persuades or attempts to persuade a minor to engage in
sexual activity 'for which any person can be charged with a criminal offense.'" United
States v. Patten, 397 F.3d 1100, 1103 (8th Cir. 2005) (quoting 18 U.S.C. § 2422(b)).
We look to state law to provide the underlying criminal offense. Id. In Arkansas, it
is a criminal offense for a defendant, age twenty years or older, to engage in sexual
intercourse or "deviate sexual activity"2 with another person who is less than sixteen
years of age. Ark. Code Ann. § 5-14-127(a)(1). Similarly, the § 2423(b) offense is
limited to traveling in interstate commerce "for the purpose of engaging in any sexual
act . . . with a person under 18 years of age that would be in violation of Chapter
109A." 18 U.S.C. §§ 2423(b) and (f). Chapter 109A proscribes engaging in a sexual
act3 with a person who attained the age of twelve but not sixteen. Id. § 2243(a);
United States v. Blazek, 431 F.3d 1104, 1108 (8th Cir. 2005).

       Langley contends there was insufficient evidence to conclude he believed J.C.
was under the age of sixteen because J.C.’s online profiles initially stated she was
eighteen and twenty-one years old. This is incorrect. J.C. testified she told Langley
she was not eighteen years old, as stated in her initial online profile, rather she was
fifteen years old. His only response was to instruct her not to tell anyone they were
communicating or he could get into trouble.

       In addition, Langley decided to abort their planned meeting at Blimpie's
because he was "scared" of the police officers on the scene. It is reasonable to
conclude he was scared of the police because he knew he was about to engage in
illegal activity, i.e., he knew J.C. was under the age of sixteen.


      2
        "Deviate sexual activity" is defined to include oral sex. Ark. Code Ann.
§ 5-14-101(1)(A).
      3
          "Sexual act" is defined to include oral sex. 18 U.S.C. § 2246(2)(B).

                                          -6-
      The jury also viewed and examined the Internet chat log from April 23, 2006.
Detective Murray, posing as J.C., typed the wrong age for J.C. Langley noticed,
evidencing his belief she was fifteen years old:

      J.C.: maybe we can celebrate my [birthday]
      J.C.: i will be 15 next month
      Langley: sure
      Langley: wait
      Langley: u said ur 15 now
      Langley: and ur turning 15
      Langley: 16
      J.C.: yes
      Langley: not 15
      J.C.: we can celebrate it
      Langley: how old will u b
      Langley: ?
      Langley: 15 or 16?
      J.C.: 16

       Based upon J.C.'s testimony, evidence of Langley's consciousness of guilt, and
the above online colloquy, a reasonable jury could find Langley believed J.C. was
under sixteen years of age. Although Langley testified he was confused as to J.C.'s
age, we will not second-guess credibility determinations made by the jury during trial.
Birdine, 515 F.3d at 844. Accordingly, Langley has not demonstrated there was
insufficient evidence to support his convictions.




                                         -7-
                                          III

      We affirm Langley's convictions.

BEAM, Circuit Judge, concurring.

      I concur in the result reached by the court today because I agree that even
excluding the eight photographs at issue in this case there is sufficient evidence to
convict Mr. Langley of the two criminal charges. In doing so, however, I leave no
inference that I agree with the possibility that under the facts of this case the
photographs were admissible. They were not.

        As we have seen through the promulgation of Federal Rules of Evidence 413,
414 and 415, Congress can authorize the admissibility of propensity evidence if it
wishes. But, it has not done so for the evidence proffered by the government in this
litigation. See Fed. R. Evid. 404(b). I concede that trafficking in child pornography
and the commission of associated offenses constitute reprehensible crimes. But even
so, an accused is entitled to a fair trial, that is one properly employing the rules of
evidence. I respectfully submit that such did not occur here.

       As the court notes, eight photographs of the same individual were discovered
on Langley's computer during a warrant search of his home. Neither the identity nor
the age of the woman imaged were ever established. Nonetheless, the government,
citing Federal Rule of Evidence 404(b), proffered the photographs as evidence of
Langley's intent and motive to travel in and use means of interstate commerce to
commit crimes involving an identified fifteen-year-old woman. Intent is a specific
element of the charged offenses. And, it was the burden of the government to prove
this element by proof beyond a reasonable doubt.




                                         -8-
       Pretrial, Langley made a motion to exclude the photographs of the unidentified
female, whose circumstances, relationships and age were and remain undetermined.
If Arkansas law applies, the woman Langley sought to contact needed to be "less than
sixteen (16) years of age." Ark. Code Ann. § 5-14-127. If federal law applies, she
needed to be an individual "who ha[d] not attained the age of 18 years." 18 U.S.C.
§ 2422(b). Thus, if the prosecuting witness was eighteen years old, there was no
crime. Likewise, if the unidentified woman was eighteen years old, it was lawful for
Langley to maintain the photographs on his computer and the photographs provided
no evidence relevant to Langley's intent to travel to see the fifteen-year-old victim.
And, other than the physical existence of the pictures, there is and was no evidence
that the unknown woman was under eighteen years at the time the photographs were
taken, at the time they came into Langley's possession, at the time they were seized
by the government, at the time they were received in evidence during the
government's case-in-chief at trial, or at the time the government presented them to
the jury during its summation with instructions for the jurors to "decide how old she
looks." Tr. at 531. Indeed, at the time they were received in evidence at the trial, the
only proof that the woman may have been less than eighteen years old was the visual
conclusions of the trial judge and the government's attorney. In other words, there
was no foundational evidence whatever concerning the person in the photographs.
Nonetheless, the trial judge overruled Langley's motion in limine and the eight
photographs were received in evidence during the government's case-in-chief without
further discussion, but with an erroneous limiting instruction that I will discuss in a
moment.

      There was no evidence as to when or where the pictures were taken and the
government conceded at oral argument before this court that there is no evidence as
to the age or identity of the woman except a concession that she had obviously
reached puberty, a fact that the photographs bear out. In this regard the government's
counsel forthrightly stated that the vast majority of child pornography seen in criminal
charges obviously involves prepubescent children and "if you're dealing with a child


                                          -9-
over the age of twelve or thirteen and puberty has hit . . . the government does not
charge those cases unless you have someone to definitely state the age because it is
difficult once a female in particular hits puberty to know exactly what age they are."
Oral Arg. Recording at 27:07. Accordingly, it is clear that the government placed in
evidence proof of propensity only and without establishing, under any acceptable
burden of proof, that it was unlawful for Langley to possess the pictures or that they
were relevant to any properly contestable issue in the case. I concede that this court
has stated that "[r]ule 404(b) is a rule of inclusion, prohibiting only evidence that
tends solely to prove the defendant's criminal disposition." United States v. Shoffner,
71 F.3d 1429, 1432 (8th Cir. 1995); see also Huddleston v. United States, 485 U.S.
681, 688-89 (1988). But, I feel certain that Shoffner did not mean that the rule was
this inclusive.

      Additionally, while the government contends that evidence was offered only to
prove Langley's "intent to travel to meet the fifteen year old," Oral Arg. Recording at
19:08, it asked for and received the following instruction from the district court.

      These [Federal Rule of Evidence 404(b)] photographs . . . are admissible
      only to show [Langley's] motive, opportunity, intent, preparation, plan,
      knowledge or absence of mistake or accident.

Tr. at 221-22. But, the photographs addressed no issue in the trial except, possibly,
intent. Thus, confusingly for the jury, the instruction was not limited to the purpose
for which it was actually offered by the government.

      This court has directed that district courts, when ruling and instructing on
404(b) evidence, should not make broad references which merely restate the
components of the rule but should specify which component of the rule (here,
according to the government, intent and possibly motive) forms the basis of its ruling
and why. United States v. Johnson, 439 F.3d 947, 953-54 (8th Cir. 2006).
Nonetheless, this circuit has never found this error to be a basis for reversal. Id.

                                         -10-
       Given the almost certain inadmissibility of these photographs coupled with the
improvident jury instruction, this case presents a very close question of whether to
reverse, or not. I reluctantly choose the latter course, however, given the balance of
the evidence in the case, and concur in the result reached by the panel majority.
                         ______________________________




                                        -11-
