         Case: 15-15254   Date Filed: 04/03/2017    Page: 1 of 33




                                                          [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 15-15254
                     ________________________

              D.C. Docket No. 6:13-cr-00026-PGB-TBS-1



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

versus

JOHN FRANCIS WILLIAMS,

                                              Defendant - Appellant.

                     ________________________

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

                            (April 3, 2017)
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Before TJOFLAT, HULL, and O’MALLEY, * Circuit Judges.

HULL, Circuit Judge:

       Defendant John Williams appeals his conviction, as well as his sentence of

120 months’ imprisonment and subsequent 10 years’ supervised release. A jury

found Williams guilty on one count of having used the internet to attempt to induce

a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). On

appeal, Williams argues that the district court erred in: (1) refusing to entertain a

selective prosecution claim based on Williams’s socio-economic status;

(2) precluding expert witness testimony concerning Williams’s susceptibility to

inducement to commit this crime; and (3) refusing to modify the pattern jury

instructions on reasonable doubt and entrapment at Williams’s request. After

review of the record and the briefs, and with the benefit of oral argument, we

affirm Williams’s conviction and sentence.

                                   I. BACKGROUND

A.     Undercover Law Enforcement Operations

       From October 10, 2012, through October 15, 2012, the Volusia County,

Florida Sheriff’s Office conducted an undercover “sting” operation targeting

individuals who were seeking, via the internet (“Craigslist”), to have sexual



       *
         Honorable Kathleen M. O’Malley, United States Circuit Judge for the Federal Circuit,
sitting by designation.
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relations with minors. The operation led to the arrest of twenty-three individuals

including Williams, a sixty-six-year-old cardiac anesthesiologist.

B.    Offense Conduct

      On October 11, 2012, Tallahassee Police Sergeant Sonia Bush, who was

working as part of the Volusia County Sheriff’s Office investigation, posted an

advertisement in the “personals,” “casual encounters” section of Craigslist entitled,

“still need help, need teacher–w4m–43 (Ormond beach).” “W4m” stood for

“Women for men.” The body of the ad read, “Been trying to find the right discreet

man to teach my daughter.”

      Twenty minutes later, Williams responded to the ad, saying, “[W]hat age

group are you interested in?? 56 yo nice looking professional, very gentle and

romantic.” He identified himself as “John.” Sergeant Bush responded, saying,

“[N]ot really looking for age range,,, looking for experience, gentleness, and

patience,, and of course someone who is good at teaching a 14-year-old young

lady.” Twenty minutes after that, Williams responded, saying, “Not for me sorry[.]

John cell (803) 429 4924.”

      Sergeant Bush then asked Williams why he gave her his number if he was

not interested. Williams responded:

      Well when you told me her age I was afraid of a legal situation.
      How would I know this is not a trap??
      can we exchange pics?? or can you give me more
      info/description??
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       ...

      meet for brunch and talk this over ??

Sergeant Bush responded by sending a picture of a young girl on a swing,

explaining that “Sydney” was 14 years old and petite, with long dark hair and hazel

eyes. Sergeant Bush said that she did not know how to ease his fears that he was

being trapped but that, although she was not interested in men, her daughter was.

      The next morning, on October 12, 2012, Williams responded by sending a

picture of himself and saying, “I am sending my pic, see what she thinks[.]” When

Sergeant Bush did not respond, Williams contacted her again a few hours later,

saying, “[G]uess you found someone to meet your needs ??” and, “Nicole, I am

guessing you found a better match for your needs but if you havent I hope you will

still consider me[.] John.”

      At 6:30 p.m. that evening, Sergeant Bush replied, telling Williams that she

still had not found anyone. Two minutes later, Williams asked her if she had

received his picture and told her that he was in the Port Orange, Florida area.

Williams then asked again whether she had received his picture and told her that he

was in Port Orange. Williams asked her if they would like to meet for something to

eat or drink and said, “[w]e could talk it over and check each other out.” Sergeant

Bush told him that she had received his picture and would show it to her daughter

when she got home. Williams told her that he would wait for her reply.
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        Later that day, Sergeant Bush told Williams that she was “in the process of

screening different men” and that “the biggest thing I need to know is what you

would teach her.” In response, Williams sent Sergeant Bush a long message,

describing in detail how he planned to perform a variety of sexual acts with the

girl.

        At that point, Sergeant Bush showed the emails to her supervisors, who

determined that probable cause existed that a crime had been committed. Sergeant

Bush then responded to Williams, saying that everything sounded wonderful

except that her daughter wanted “her first time to be in her bedroom.” Williams

replied that would be fine but that they had to meet first. Sergeant Bush suggested

that Williams come over to her house where her daughter could make dinner. After

exchanging more messages, Williams agreed to come to the mother’s house that

night. Sergeant Bush provided Williams with directions to her home.

        That night, Williams traveled to the address that Sergreant Bush gave him.

Once Williams arrived, he got out of his car and approached the front door

carrying a towel, a plastic grocery bag, and a canvas bag. Law enforcement agents

arrested Williams as he opened the door.

        Williams’s grocery bag contained two bottles of wine, condoms, surgical

scrub pants, a man’s bathrobe, two bottles of lubricant, several sex toys, shaving

cream and a razor, toothpaste, a toothbrush, and two hairbrushes. A subsequent


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search of Williams’s vehicle revealed a large variety of additional sex toys and

devices, as well as ointments and lubricants. Williams had far more paraphernalia

than necessary to commit this single crime.

      Further, following his arrest, Williams told a federal agent that he owned his

own plane and had flown from his home in South Carolina to Florida on October

10, 2012, the day before he began exchanging emails with Sergeant Bush.

C.    Williams’s State Court Case and Transfer

      Following Williams’s arrest, Williams was charged in state court with:

(1) use of a computer to seduce, solicit, or lure a child, in violation of Fla. Stat.

§ 847.0135(3)(a); (2) traveling to meet a minor after use of a computer to solicit a

child, in violation of Fla. Stat. § 847.0135(4)(a); and (3) unlawful use of a two way

communication device, in violation of Fla. Stat. § 934.215.5. All of the twenty-two

other arrestees also arrested during the Volusia County Sheriff’s Office’s October

10-October 15, 2015 undercover operation were charged with the same three state

law crimes.

      In February 2013, the Assistant State Attorney (“ASA”) assigned to

Williams’s case, Tiffany Adleman, received a telephone call from Immigration and

Custom Enforcement Special Agent Joe Grey. Grey requested that Williams’s state

case be dismissed in favor of a federal prosecution. ASA Adleman offered to

transfer all of the cases that were filed in connection with the Volusia County


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Sheriff’s Office undercover operation. However, Agent Grey declined and was

only interested in prosecuting Williams.

D.    Procedural History in Federal Court

      On February 6, 2013, a federal grand jury returned an indictment charging

Williams with one count of using the internet to knowingly attempt to persuade,

induce, and entice an individual who had not attained the age of 18 years to engage

in sexual activity for which any person could be charged with a criminal offense

under Florida law, namely, lewd or lascivious battery, a violation of Florida Statute

800.04, all in violation 18 U.S.C. § 2422(b). The count carried a mandatory

minimum penalty of ten years’ imprisonment.

      On March 19, 2013, the State of Florida dismissed the three state charges

pending against Williams in favor of the federal prosecution.

E.    Williams’s Psychiatric Examination

      On April 5, 2013, prior to Williams’s federal trial, Williams filed with the

district court an unopposed motion for psychological, psychiatric,

neuropsychological, and neurological evaluations, pursuant to 18 U.S.C. § 4241(b),

and to determine competency. The district court referred the motion to a magistrate

judge, who granted the motion and ordered Williams to undergo a psychiatric

examination to determine whether he was competent to stand trial. Williams was




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transferred to a federal detention center in Miami, Florida for a psychiatric

examination. On April 15, 2013, the psychiatric examination began.

F.     Williams’s First Selective Prosecution Motion

       On September 30, 2013, while the results of Williams’s psychiatric

examination were pending, Williams filed a motion to compel discovery and/or to

dismiss the indictment due to selective prosecution on the basis of his age,1 wealth,

and socio-economic status. In the motion, Williams noted that, although he had

been one of the twenty-three people who were arrested during the Volusia County

Sheriff’s Office undercover operation, only his case was selected for federal

prosecution. Williams requested that the district court allow him discovery to

determine whether he had been unconstitutionally selected for federal prosecution.

       The motion was referred to a magistrate judge. On December 10, 2013, the

magistrate judge issued a report and recommendation finding that Williams had

successfully demonstrated that he was similarly situated to the arrestees who were

not prosecuted in federal court. The magistrate judge recommended, however, that

Williams’s motion be denied because he failed to show that the government’s

prosecution was based on a constitutionally impermissible motive. On April 21,



       1
         On appeal, Williams does not argue selective prosecution based on age. Accordingly, he
has abandoned any selective prosecution claim based on this characteristic. See Sapuppo v.
Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014); see also Singh v. U.S. Att’y Gen.,
561 F.3d 1275, 1278 (11th Cir. 2009).
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2014, the district court adopted the report and recommendation and denied

Williams’s motion.

G.    Williams’s First Competency Hearing Leads to a Determination that
      Williams Is Not Competent to Stand Trial

      On May 13 and 14, 2014, nearly a year after Williams’s transfer to Miami

for a psychiatric examination, a magistrate judge conducted a competency hearing

regarding the results of the examination. At the hearing, the magistrate judge heard

testimony from: (1) Dr. Rodolfo Buigas, a forensic psychologist from the Bureau

of Prisons who had examined an MRI of Williams’s brain; (2) Dr. Kenneth C.

Fischer, who had conducted a neurological evaluation of Williams; (3) Dr. Frank

L. Quinn, a counselor who had worked with both Williams and his wife over

several years; and (4) Dr. Michael Rappaport, a clinical psychologist who had

evaluated Williams’s competency post-arrest. Following their testimony, the

magistrate judge recommended that the district court find that Williams was not

competent to stand trial. Neither party objected to the recommendation. On June 2,

2014, the district court adopted the recommendation and referred Williams to the

Federal Medical Center at Butner, North Carolina for further evaluation and

“restoration” treatment.

      On August 19, 2014, Williams was transferred to the Federal Medical Center

at Butner, North Carolina. Dr. Maureen Reardon, a forensic psychologist, and Dr.

Tracy O’Connor Pennuto, Butner’s staff neuropsychologist, completed a
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neuropsychological consultation of Williams. On January 5, 2015, following

months of treatment, Drs. Reardon and Pennuto completed a written evaluation of

Williams and emailed it to the district court. The written evaluation declared that

Williams was now competent to stand trial. Upon receiving the written evaluation,

a magistrate judge scheduled Williams for a second competency hearing, to be held

on May 20, 2015.

H.    Government Statement Prompting Renewed Selective Prosecution
      Motion

      On or about April 7, 2015, prior to Williams’s second competency hearing,

Williams’s counsel met with the government to discuss a number of other pretrial

matters. At this meeting, Williams’s counsel expressed frustration about

Williams’s alleged selective prosecution. In response, an Assistant United States

Attorney (“AUSA”) responded: “How many [of the co-arrestees] were doctors

who flew their own planes?”

      On April 23, 2015, Williams’s counsel notified the district court that,

partially as a result of the AUSA’s remark, Williams would be filing a renewed

motion on Williams’s selective prosecution claim. On July 13, 2015, Williams

filed a renewed motion to dismiss the indictment and/or for limited discovery due

to selective prosecution. In the motion, Williams argued that he had been

selectively chosen for prosecution on account of his wealth and socio-economic

status. The district court denied Williams’s renewed selective prosecution motion,
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finding that Williams again failed to establish that the government’s prosecution

was due to a discriminatory motive.

I.    Williams’s Second Competency Hearing Leads to a Determination that
      Williams Is Competent to Stand Trial

      On May 20, 2015, a magistrate judge conducted Williams’s second

competency hearing. During the hearing, both Dr. Reardon and Dr. Pennuto

testified regarding their examination of Williams and their report, in which they

found that Williams was competent to stand trial. Dr. Pennuto testified that she had

determined that most of Williams’s cognitive functioning was fully intact.

Dr. Reardon testified that, although Williams had suffered a mild decline in some

areas of cognitive abilities, he was still functioning very well and higher than most.

      The magistrate judge entered a sealed report and recommendation,

recommending that the district court find that Williams was competent to stand

trial. On July 13, 2015, the district court issued an order adopting the

recommendation and setting the case for trial, to be held on August 26, 2015.

J.    Government’s Motions In Limine; Daubert Hearing

      On August 10, 2015, the United States filed a motion in limine seeking to

exclude Dr. Rappaport’s testimony from the first competency hearing concerning

Williams’s mental condition. Williams filed a response, asserting that Dr.

Rappaport’s opinion was admissible as to his entrapment defense. Williams also

gave notice that he intended to introduce at trial the testimony provided by Drs.
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Fischer and Quinn at his first competency hearing. The government filed an

additional motion in limine seeking to exclude their testimony as well.

       On August 24, 2015, the district court entered an order stating that it would

need to address the various motions in limine through a Daubert hearing to

determine the admissibility of the proffered experts. 2 At the beginning of trial on

August 26, 2015, the district court conducted the Daubert hearing.

       At the hearing, Dr. Rappaport testified that, in March 2013, he conducted a

mental status examination of Williams and referred him to Dr. Fischer for

neurological testing to determine the cause of Williams’s purported neurological

deficiencies. 3

       Dr. Rappaport testified that Dr. Fischer’s resulting neurological report—

showing that Williams had some form of brain disease—corroborated Dr.

Rappaport’s suspicions about Williams’s cognitive deficiencies. Dr. Rappaport

concluded that Williams’s “executive function was impaired and that he was very

susceptible to certain things.” Dr. Rappaport testified further that he had

determined that Williams had “executive-functioning problems,” i.e., problems

with his decision-making process.



       2
           Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993) (holding that
the trial court must assess whether an expert is qualified to testify competently regarding the
matters he intends to address); see also United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir.
2004).
         3
           A neurological evaluation looks at the structure of the brain.
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      Williams’s counsel asked Dr. Rappaport to explain his basis for concluding

from his March 2013 examination that Williams was “unduly susceptible to certain

things.” Dr. Rappaport responded that Williams was a “68-year-old brain-impaired

man, who was at that time by himself, isolated and very lonely, . . . who could

easily have been manipulated by other people much more easily manipulated than

[his attorney] or you or me or the court reporter.” The district court asked: “Based

upon what peer-reviewed study?” Dr. Rappaport replied: “Based upon my

examination of him . . . and the validation of my examination by [Dr. Fischer] . . .

who evaluated [the] actual picture of his brain.” Dr. Rappaport also testified that

“[t]here’s all kinds of stuff about how older people are susceptible to

manipulation.”

      On cross-examination, Dr. Rappaport confirmed that he had first seen

Williams in March 2013, six months after his arrest. Dr. Rappaport further testified

that none of the tests that he had administered in March 2013 were capable of

assessing Williams’s mental condition on the night of his arrest in October 2012.

However, Dr. Rappaport testified that he could assess the condition of Williams’s

mental state on that night by considering Williams’s later behavior, as well as

“what [Williams’s] family had told [him].”

      Government counsel asked Dr. Rappaport to explain how he could show that

Williams’s mental state made him susceptible to inducement to commit this crime


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in October 2012. Dr. Rappaport responded by saying that “the best predictor

usually of future behavior is past behavior” and that Dr. Fischer’s neurological

conclusion—that the changes in Williams’s brain had been occurring for some

time—was consistent with what he had learned about Williams’s behavior from

Williams’s family members.

      Following the hearing, the district court granted the government’s motions in

limine, finding that none of Williams’s doctors’ testimony met the Daubert

standard for admissibility.

      As to Drs. Fischer and Quinn, the district court first noted that Dr. Fischer

had not attempted to connect his findings on the physical changes to Williams’s

brain to his particular susceptibility to inducement to commit this crime—he had

opined only on Williams’s competency to stand trial. The district court further

noted that Dr. Quinn had not correlated his observations of Williams to Williams’s

susceptibility to inducement. Therefore, the district court determined that the

reports and testimony of Drs. Fischer and Quinn would only be admissible to the

extent that they provided foundational evidence in support of Dr. Rappaport’s

testimony, the only doctor to testify on the relationship between Williams’s mental

state and his susceptibility to inducement to commit this crime.

      As to Dr. Rappaport, the district court noted that he had been unable to

identify any peer-reviewed methodology for identifying how, or to what extent, a


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person’s cognitive decline causes him to be more susceptible to inducement. The

district court stated:

               There’s no indication that Dr. Rappaport’s analysis in terms of
        the connection between what he observed and what Dr. Fischer saw
        and the ultimate conclusion of susceptibility is in fact subject to peer
        review publication or has been or can—that it can be repeated in a
        reliable manner. There is no indication in the record that I saw that the
        technique of a clinical psychologist evaluating a patient and relying
        upon the objective findings of the neurologist is generally accepted in
        the scientific community to demonstrate susceptibility to suggestion.

        The district court further noted that Dr. Rappaport could not point to a

scientific methodology showing how his March 2013 examination could accurately

show that Williams was susceptible to inducement to commit this crime in October

2012.

        Accordingly, the district court determined that Dr. Rappaport’s testimony

was not admissible under the Daubert standard. As a result, the district court

further determined that the admission of the testimony of Drs. Quinn and Fischer

would be more prejudicial than probative since neither had opined on susceptibility

to inducement and their testimony could only be foundational to Dr. Rappaport’s

now inadmissible testimony.

K.      Defense’s Proffered Testimony

        Following the district court’s ruling on the admissibility of the testimony of

Drs. Rappaport, Fischer, and Quinn, Williams’s counsel proffered the testimony



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that the doctors would have presented if the district court had not granted the

government’s motions in limine.

       Williams’s counsel proffered that, had Dr. Quinn been permitted to testify,

he would have stated that by July 8, 2002—approximately ten years prior to

Williams’s arrest—Dr. Quinn had diagnosed Williams with a major mental disease

or defect. Dr. Quinn would have explained that, on October 24, 2012, shortly after

Williams’s arrest, Williams requested that Dr. Quinn conduct a mental status

evaluation of Williams because Williams was concerned about his cognitive

function and poor memory. Shortly after Williams’s October 2012 arrest, Dr.

Quinn would have diagnosed Williams with recurrent attention deficit disorder and

depression. Dr. Quinn would have testified that, during the time leading up to

Williams’s arrest, Williams was in a “fugue” state or a manic episode brought on

by withdrawal from prescription medication. 4

       In addition, Williams’s counsel proffered that, had Dr. Fischer testified, he

would have stated that, since 1971, he frequently appeared as an expert witness in

federal and state court proceedings as a treating neurologist. He would have

testified that he conducted a comprehensive neurological evaluation of Williams in

May 2013 while Williams was in custody at the federal detention center in Miami.


       4
         A fugue state is an episode in which the individual is not aware of an act he or she may
have done and has no memory of it; a manic episode is a state in which the individual essentially
feels “bulletproof” and has no concept of the consequences of his or her actions.
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The evaluation included review and assessment of Williams’s medical history and

executive functioning, which Dr. Fischer described as Williams’s ability to

organize his life and carry out specific activities in a coherent manner. Dr. Fischer

would have testified that his evaluation concluded that Williams was suffering

from some form of dementia and cognitive decline, which necessarily adversely

effected Williams’s executive functioning, i.e., decision-making ability.

       Williams’s counsel proffered that, had Dr. Rappaport testified at trial, he

would have testified that he initially met with Williams on March 11, 2013, in the

Seminole County Jail and examined him. Dr. Rappaport would have testified that,

in 2013, Williams: (1) presented with a “flat” affect; (2) was unable to count

backwards from 100 by 7; and 5 (3) showed clearly poor problem-solving skills.

Dr. Rappaport would have testified to a “reasonable psychological certainty” that

someone suffering from the same or similar mental health deficits and defects as

Williams would have been more susceptible to suggestion, manipulation, and

inducement to commit this crime by third parties.

L.     Reasonable Doubt Jury Instruction

       On August 28, 2015, the third day of trial, the district court held a jury-

instruction conference. At the jury-instruction conference, Williams objected to the

       5
         Counting backwards from 100 by 7 is a test for the existence of cognitive dysfunction; it
forms part of the Mini Mental Status Examination (“MMSE”), an examination that Williams
alleges is a generally accepted methodology for federal and state court proceedings in both civil
and criminal cases to assist in determining one’s mental health.
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district court’s proposed use of the Eleventh Circuit pattern jury instruction on

reasonable doubt. The pattern jury instruction reads, in relevant part: “The

Government’s burden of proof is heavy, but it doesn’t have to prove a Defendant’s

guilt beyond all possible doubt. The Government’s proof only has to exclude any

‘reasonable doubt’ concerning the Defendant’s guilt.”

       Through his objection, Williams sought to strike the word “only” from the

pattern jury instruction, arguing that it lessened the government’s burden of proof.

The district court overruled the objection, explaining: “I think the instruction in its

totality makes it clear that the jury doesn’t have to exclude all possible doubt,

including hypothetical or fanciful doubt, but only a reasonable doubt, which is then

[later] defined.” The district court ultimately read to the jury the full pattern jury

instruction on reasonable doubt, including the word “only.”

M.    Entrapment Jury Instruction

      Williams also requested that the district court modify the Eleventh Circuit

pattern jury instruction concerning entrapment. Williams proposed to add three

provisions (underlined below) to the relevant portion of the pattern jury instruction

on entrapment:

             But there is no entrapment when a defendant is willing to
      violate the law and the Government merely provides what appears to
      be a favorable opportunity for the defendant to commit a crime.
      However, in determining one’s willingness or unwillingness to violate
      the law, the jury is permitted to consider evidence of the defendant’s
      state of mind and diminished mental health.
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            For example, it’s not entrapment for a Government agent to
      pretend to be someone else and offer—directly or through another
      person—to engage in an unlawful transaction. However, it is
      entrapment if the defendant, as a direct result of diminished mental
      health, was more easily induced and/or persuaded by the Government
      to engage in the unlawful behavior.

      ...

             But if, as a result of the defendant’s diminished mental health,
      there is a reasonable doubt about whether the Defendant was willing
      to commit the crime without the persuasion of a Government officer
      or a person under the Government’s direction, then you must find the
      Defendant not guilty.

      The government did not object to the inclusion of Williams’s first proposed

revision but did object to the inclusion of the others. As to the second proposed

revision, the district court determined that revision should not be included because,

without the testimony of Dr. Rappaport, no witness testimony supported

application of the proposition to this case. As to the third proposed revision, the

district court stated that, because “diminished mental health, proven through the

proper means or matter, can and should be considered in terms of inducement,” the

third proposed revision was appropriate. The district court agreed to include the

first and third proposed revisions but not the second proposed revision.

      However, after Williams presented his defense case, the district court told

counsel for both parties that it would “give the Eleventh Circuit pattern [on

entrapment] without a reference to mental disease or defect . . . because . . . mental


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disease or defect requires evidence from a licensed physician of some kind that can

draw the nexus.” During the jury instructions, the district court read the pattern

jury instruction on entrapment to the jury without including Williams’s first and

third proposed revisions.

      On August 31, 2015, the jury returned a verdict of guilty against Williams

on the charged offense. On November 24, 2015, Williams timely appealed.

                        II. SELECTIVE PROSECUTION

A.    Standard of Review

      In reviewing the denial of a motion to dismiss for selective prosecution, this

Court reviews the district court’s factual findings for clear error and its legal

conclusions de novo. United States v. Jordan, 635 F.3d 1181, 1185 (11th Cir.

2011). This Court reviews for abuse of discretion a district court’s denial of a

request for discovery in a selective prosecution claim. Id. “An abuse of discretion

can occur where the district court applies the wrong law, follows the wrong

procedure, bases its decision on clearly erroneous facts, or commits a clear error in

judgment.” United States v. Brown, 415 F.3d 1257, 1266 (11th Cir. 2005).

B.    Relevant Law

      Selective prosecution claims are analyzed under the equal protection

component of the Fifth Amendment’s Due Process Clause. See United States v.

Armstrong, 517 U.S. 456, 464, 116 S. Ct. 1480, 1486 (1996). Equal protection


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dictates that “the decision whether to prosecute may not be based on an

unjustifiable standard such as race, religion, or other arbitrary classification.”

Jordan, 635 F.3d at 1188 (internal citations and quotations omitted).

        “In order to dispel the presumption that a prosecutor has not violated equal

protection, a criminal defendant must present clear evidence to the contrary.”

United States v. Smith, 231 F.3d 800, 807 (11th Cir. 2000) (quoting Armstrong,

517 U.S. at 465, 116 S. Ct. at 1486). To establish a selective prosecution claim, the

defendant must show that: (1) the “prosecution had a discriminatory effect, i.e.,

that similarly situated individuals were not prosecuted,” and; (2) “that the

difference in treatment, or selectivity of the prosecution, was motivated by a

discriminatory purpose.” Id. at 809. The discriminatory purpose prong requires that

“the decisionmaker selected or reaffirmed a particular course of action at least in

part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable

group.” Jordan, 635 F.3d at 1188 (quoting Wayte v. United States, 470 U.S. 598,

610, 105 S.Ct. 1524, 1532 (1985)).

        A defendant may obtain discovery in support of a selective prosecution

claim where the defendant provides “some evidence tending to show the existence

of the essential elements of the defense.” Armstrong, 517 U.S. at 468, 116 S. Ct. at

1488.




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C.     Discussion

       The government does not dispute the district court’s determination that

Williams was similarly situated to the other arrestees in that Williams committed

the same crime in similar circumstances. 6 Accordingly, we limit our review to

whether the government selectively prosecuted Williams based on a discriminatory

motive or, alternatively, whether the district court abused its discretion in denying

Williams the opportunity to conduct discovery on that question.

       In his brief on appeal, Williams recognizes that “there does not (yet) appear

to be a Federal case dismissing an indictment due to selective prosecution on the

basis of a defendant’s wealth.” Nonetheless, Williams asserts that the “law is

clear” that “wealth and socioeconomic status are ‘off limits’ as far as disparate

treatment in the criminal justice system is concerned.” See McDonald v. Bd. of

Election Comm’rs, 394 U.S. 802, 807, 89 S. Ct. 1404, 1407-08 (1969) (“[A]

careful examination on our part is especially warranted where lines are drawn on

the basis of wealth or race . . . two factors which would independently render a

classification highly suspect and thereby demand a more exacting judicial

scrutiny.”); Harper v. Va. Bd. of Elections, 383 U.S. 663, 668, 86 S. Ct. 1079,

1082 (1966) (“Wealth, like race, creed, or color, is not germane to one’s ability to

       6
        Because the district court determined that Williams was similarly situated to the twenty-
two other arrestees and the government did not timely object to that finding, the government has
waived any objection to the finding. See United States v. Garcia-Sandobal, 703 F.3d 1278, 1283
(11th Cir. 2013).
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participate intelligently in the electoral process.”); Griffin v. Illinois, 351 U.S. 12,

19, 76 S. Ct. 585, 591 (1956) (“There can be no equal justice where the kind of

trial a man gets depends on the amount of money he has.”).

      Even assuming arguendo that Williams’s argument—that prosecution may

not be based on one’s wealth vis-à-vis other potential defendants—is true,

Williams points to no credible evidence suggesting that the government selectively

chose to prosecute him because of his wealth.

      Williams’s alleged evidence offered to show discriminatory intent is the

AUSA’s comment to Williams’s counsel—“How many [of the co-arrestees] were

doctors who flew their own planes?”—made over two years after Williams’s

federal indictment. This comment does not specifically mention wealth at all. And

though Williams asks us to infer a concern about Williams’s wealth from the

comment, under the factual circumstances of this case, the comment more

reasonably reflects the prosecutor’s concern about Williams’s mobility to readily

travel to where his minor victim was or might be once Williams made online

contact, or to spirit the child away. In fact, Williams flew the day before from

South Carolina to Florida, which enabled him to go to the victim’s residence the

next day. Williams also provides no concrete evidence as to the relative wealth or

poverty of the other arrestees.




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      Without more, Williams has provided no credible evidence showing that the

government harbored a discriminatory motive against Williams on the basis of his

wealth or status. Accordingly, the district court did not err in denying Williams’s

motion to dismiss the indictment on this basis or in refusing to allow Williams to

conduct discovery on the issue.

              III. ADMISSIBILITY OF EXPERT TESTIMONY

A.    Standard of Review

      This Court reviews “district court[] decisions regarding the admissibility of

expert testimony and the reliability of an expert opinion” for abuse of discretion.

United States v. Frazier, 387 F.3d 1244, 1258 (11th Cir. 2004).

B.    Applicable Law

      A successful entrapment defense has two elements: (1) governmental

inducement of the crime; and (2) lack of predisposition on the part of the

defendant. United States v. Brown, 43 F.3d 618, 623 (11th Cir. 1995). The

defendant bears the initial burden of production to show government inducement.

United States v. Sistrunk, 622 F.3d 1328, 1333 (11th Cir. 2010). Once the

defendant has met his burden to show evidence of government inducement, the

burden shifts to the government to prove beyond a reasonable doubt that the

defendant was predisposed to commit the crime, and the question of entrapment




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becomes a factual one for the jury to decide. United States v. Ryan, 289 F.3d 1339,

1344 (11th Cir. 2002).

      A defendant may show inducement by producing evidence sufficient to raise

a jury issue “that the government’s conduct created a substantial risk that the

offense would be committed by a person other than one ready to commit it.”

Brown, 43 F.3d at 623 (quoting United States v. Andrews, 765 F.2d 1491, 1499

(11th Cir. 1985)). Evidence of the government’s “mere suggestion of a crime or

initiation of contact is not enough.” Id. Rather, “government inducement requires

an element of persuasion or mild coercion,” which consists of “excessive pressure

or manipulation of a non-criminal motive.” Id.

      “Regardless of the defendant’s ability to engage in criminal acts . . . the

prompt commission of the crime at the first opportunity is enough to show

predisposition.” Id. at 624.

      Williams sought to introduce the testimony of Drs. Rappaport, Fischer, and

Quinn as expert testimony. An expert’s testimony is admissible if: (1) the expert’s

“specialized knowledge will help the trier of fact to understand the evidence or to

determine a fact in issue”; (2) “the testimony is based on sufficient facts or data”;

(3) “the testimony is the product of reliable principles and methods”; and (4) “the

expert has reliably applied the principles and methods to the facts of the case.”

Fed. R. Evid. 702. “The task of ensuring that an expert’s testimony both rests on a


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reliable foundation and is relevant to the task at hand is assigned to the district

court.” United Fire & Cas. Co. v. Whirlpool Corp., 704 F.3d 1338, 1341 (11th Cir.

2013) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597, 113 S. Ct.

2786, 2799 (1993)). “The admissibility standard is a liberal one, and . . . the

rejection of expert testimony is the exception rather than the rule.” Frazier, 387

F.3d at 1293-94.

      In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court

established several factors for courts to consider in determining whether to admit

an expert’s testimony: (1) whether the expert’s methodology has been tested or is

capable of being tested; (2) whether the theory or technique used by the expert has

been subjected to peer review and publication; (3) whether there is a known or

potential error rate of the methodology; and (4) whether the technique has been

generally accepted in the relevant scientific community. 509 U.S. at 593-94, 113 S.

Ct. at 2796-97. These factors “are not exhaustive and are intended to be applied in

a ‘flexible’ manner.” United Fire and Cas. Co., 704 F.3d at 1341 (quoting Kumho

Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S. Ct. 1167, 1171 (1999)).

The focus of the inquiry contemplated by Rule 702 and Daubert “must be solely on

principles and methodology, not on the conclusions that they generate.” Daubert,

509 U.S. at 595, 113 S. Ct. at 2797.




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C.    Discussion

      A threshold question here is whether testimony of Williams’s cognitive

impairment is even relevant to an alleged entrapment defense, as opposed to an

insanity defense or a claim that Williams was not competent to stand trial. While

the parties concede that it is relevant, and some non-binding case law seems to

support that concession, this Circuit has never expressly held that it is. We do not

answer that question here because there was no error in any event.

      In this case, Dr. Fischer did not opine on Williams’s potential susceptibility

to inducement—his given report and testimony focused only on the effect of

Williams’s brain disease as it related to his competency to stand trial. Similarly,

Dr. Quinn expressed no pretrial opinion regarding Williams’s susceptibility to

inducement to commit this crime, having testified only about his observations of

Williams in connection with Williams’s competence to assist in his defense at trial.

Therefore, the district court did not err in determining that, as a threshold matter,

the testimony of Drs. Quinn and Fischer would only be admissible if they related to

Dr. Rappaport’s testimony concerning the relevant issue before the district court—

Williams’s susceptibility to inducement.

      However, although Dr. Rappaport testified at the Daubert hearing about

Williams’s general loss of executive function and decision-making ability, his

testimony did not tie the decline in Williams’s cognitive function to an accepted


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scientific methodology showing that that decline had caused Williams to be

particularly susceptible to inducement at the time of his offense. Rather, Dr.

Rappaport described the various tests that he had performed to determine

Williams’s competency to stand trial, concluding that “the aberrations [he had

found] in [Williams’s] mental status examination were . . . most probably, . . .

organically based.” In other words, “[Williams] has some form of brain disease.”

      Although Dr. Rappaport testified repeatedly that Williams was experiencing

problems with executive functioning and decision-making due to that brain

disease, Dr. Rappaport also testified that none of the tests that he had administered

had been capable of assessing Williams’s mental condition on the night of his

arrest in October of 2012, the relevant inquiry for Williams’s entrapment defense.

Dr. Rappaport also testified that neither he nor anyone else would be able to say

what the structure of Williams’s brain had been at that time. Further, Dr.

Rappaport testified that there is no peer-reviewed body of literature that shows

that, when a PET scan or MRI shows that the frontal lobe of a person’s brain is

damaged—as the studies of Williams’s brain showed here—that person will be

particularly susceptible to inducement to commit a crime, much less a sex crime

with a 14-year-old victim.

      Therefore, although Williams established that Dr. Rappaport had

administered tests and evaluations that constituted accepted techniques for


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determining Williams’s mental status and mental problems at the time of his

March 2013 examination, he did not establish how those tests and techniques

determined (through a scientifically acceptable methodology) whether Williams

had been particularly susceptible to inducement to commit this crime on or around

October 2012. “[I]f an expert opinion does not have a ‘valid scientific connection

to the pertinent inquiry’ it should be excluded.” Boca Raton Cmty. Hosp., Inc. v.

Tenet Health Care Corp., 582 F.3d 1227, 1232 (11th Cir. 2009) (quoting Daubert,

509 U.S. at 592, 113 S. Ct. at 2796).

      Williams argues that Dr. Rappaport was prepared to testify about his own

personal experience in treating patients with a diagnosed decline in executive

function. However, neither Dr. Rappaport’s report nor his proffered testimony

explained how his personal experience was relevant to the question of whether a

decline in executive function caused one to be particularly susceptible to

inducement to commit this crime.

      Given that Dr. Rappaport did not identify a scientifically accepted method

connecting his observations of Williams with a finding of susceptibility to

inducement to commit this crime, the district court did not abuse its discretion in

barring his testimony. And because Dr. Rappaport’s testimony was inadmissible,

the district court also did not abuse its discretion in barring the testimony of Drs.




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Fischer and Quinn, whose testimony was relevant only as a foundation for the

testimony of Dr. Rappaport.

      IV. FAILURE TO GIVE A REQUESTED JURY INSTRUCTION

A.    Applicable Law

      This Court reviews “a district court’s refusal to give a requested jury

instruction for abuse of discretion.” United States v. Carrasco, 381 F.3d 1237, 1242

(11th Cir. 2004). A district court’s failure to give a requested jury instruction is an

abuse of discretion if the requested instruction “(1) was correct, (2) was not

substantially covered by the charge actually given, and (3) dealt with some point in

the trial so important that failure to give the requested instruction seriously

impaired the defendant’s ability to conduct his defense.” United States v. Eckhardt,

466 F.3d 938, 947-48 (11th Cir. 2006). This Court “will not reverse a conviction

unless [it] find[s] that issues of law were presented inaccurately or the charge

improperly guided the jury in such a substantial way as to violate due process.”

United States v. Perez-Tosta, 36 F.3d 1552, 1564 (11th Cir. 1994).

B.    The Reasonable Doubt Instruction

      Williams challenges the district court’s use of the pattern jury instruction on

reasonable doubt, which again states, in relevant part: “The Government’s burden

of proof is heavy, but it doesn’t have to prove a Defendant’s guilt beyond all

possible doubt. The Government’s proof only has to exclude any reasonable doubt


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concerning the Defendant’s guilt.” We first put that sentence in the context of the

full jury instruction on reasonable doubt, which states:

             The indictment or formal charge against a Defendant isn’t
      evidence of guilt. The law presumes every Defendant is innocent. The
      Defendant does not have to prove his innocence or produce any
      evidence at all. The Government must prove guilt beyond a
      reasonable doubt. If it fails to do so, you must find the Defendant not
      guilty.

            The Government’s burden of proof is heavy, but it doesn’t have
      to prove a Defendant’s guilt beyond all possible doubt. The
      Government’s proof only has to exclude any reasonable doubt
      concerning the Defendant’s guilt.

             A “reasonable doubt” is a real doubt based on your reason and
      common sense after you’ve carefully and impartially considered all
      the evidence in the case.

            “Proof beyond a reasonable doubt” is proof so convincing that
      you would be willing to rely and act on it without hesitation in the
      most important of your own affairs.

           If you are convinced that the Defendant has been proved guilty
      beyond a reasonable doubt, say so. If you are not convinced, say so.

Williams argues that the use of the word “only” necessarily “lessens the

Government’s burden of proof” and “improperly implies that [Williams] has at

least some burden to put forth a case against the Government’s.”

      Williams’s argument is without merit. The charge first clearly shows that the

government “must prove guilt beyond a reasonable doubt” and that, if it does not,

the jury “must find the Defendant not guilty.” In the next paragraph, inclusion of

the word “only,” particularly in the context of the entire jury instruction, does not
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alter the jury’s charge that the government bears a “heavy” burden to exclude

“any” reasonable doubt as to the defendant’s guilt. Rather, it “guards against a

reading of ‘reasonable doubt’ that would require the Government to disprove all

possible doubt—a burden higher than the law requires.” United States v. Rosin,

263 F. App’x 16, 31 (11th Cir. 2008) (unpublished). The district court reiterated

this reasoning in its discussion of Williams’s proposed jury instruction : “[T]he

[pattern jury] instruction in its totality makes it clear that the jury doesn’t have to

exclude all possible doubt, including hypothetical or fanciful doubt, but only a

reasonable doubt, which is then [later] defined.”

      Williams fails to show that the inclusion of this single word “only” would

offer a materially different jury instruction than the one he proposes, much less that

the pattern jury instruction would so mislead the jury as to deny Williams his

constitutional right to due process. See Eckhardt, 466 F.3d at 948; Perez-Tosta, 36

F.3d at 1564. Accordingly, the district court did not abuse its discretion in refusing

to give this proposed jury instruction.

C.    The Entrapment Instruction

      Williams also argues that the district court erred in failing to include several

proposed revisions to the pattern entrapment jury instruction. These revisions

highlighted Williams’s state of mind and diminished mental health. Williams

argues that these revisions were “essential” to Williams’s entrapment defense


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because they highlighted physiological factors that made Williams unusually

susceptible to inducement to commit this crime and to government entrapment.

      Although the district court originally agreed to include Williams’s proposed

revisions, it ultimately did not because—following the district court’s exclusion of

the proposed expert testimony about Williams’s psychological health—the

revisions no longer applied. Indeed, the testimony of Drs. Rappaport, Fischer, and

Quinn constituted the only possible expert testimony concerning the claim that

Williams’s psychological health made him particularly susceptible to inducement

to commit this crime. And it is undisputed that a lay witness could not testify to

this specialized knowledge. See Fed. R. Evid. 702. Because the district court

barred admission of these experts’ testimony following the Daubert hearing,

Williams thus presents no evidentiary support for the principle he seeks to

highlight in his proposed revisions to the pattern entrapment jury instruction.

Accordingly, the district court also did not err in refusing to include these proposed

revisions.

                                V. CONCLUSION

       For all of these reasons, we affirm Williams’s conviction and sentence.

       AFFIRMED.




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