     Case: 09-10454     Document: 00511174478          Page: 1    Date Filed: 07/15/2010




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

                                                 FILED
                                                                            July 15, 2010

                                       No. 09-10454                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee
v.

RANDALL HOWARD WOLFORD,

                                                   Defendant–Appellant




                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 4:08-CR-165-1


Before JONES, Chief Judge, and KING and HAYNES, Circuit Judges.
PER CURIAM:*
        Over the course of several weeks, Randall Howard Wolford chatted online
with “Jen,” who identified herself as a thirteen-year-old girl, and he ultimately
attempted to meet her in person. But “Jen” was actually an undercover police
officer. Wolford was arrested, convicted by a jury of one count of attempting to
entice a minor to engage in unlawful sexual activity, and sentenced to 292




       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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months in prison. Before this court, Wolford challenges his conviction and
sentence. We affirm as to both.
                              I. BACKGROUND
      On March 20, 2008, Wolford entered an online chat room named
“Romance” and struck up a conversation with a user who identified herself as
“Jen.” According to her profile, Jen lived near Wolford and was twelve-years-old,
though she informed Wolford that she had recently turned thirteen. In fact, Jen
was not thirteen or even female. “Jennifer Easley” was the online, undercover
identity of Sergeant Tom Milner of the Sansom Park Police Department in the
Dallas/Fort Worth area.
      During the following weeks, Wolford and Jen chatted a number of times,
with each conversation quickly veering toward the sexually explicit, usually at
Wolford’s instigation. Wolford described the sexual acts that he wanted to
perform on Jen, sent her pornographic images, requested that she send him
nude photographs of herself, and directed her to a live video stream where he
could be seen in sexual conduct. He stated repeatedly that he wished to meet
her in person, but also expressed concern that she was an online vigilante or law
enforcement officer, rather than whom she claimed to be.
      Nonetheless, Wolford made arrangements for a rendezvous at a local
McDonald’s on April 30, 2008. He arrived, greeted a nineteen-year-old police
department employee posing as his prey, and encouraged her to get in his truck.
She said she needed to use the bathroom in the restaurant; as she walked away,
Wolford fled. He was stopped a few miles from the restaurant and arrested.
      Wolford was indicted on one count of attempting to persuade, induce,
entice, or coerce a minor to engage in criminal sexual activity, in violation of
18 U.S.C. § 2422(b). He pled not guilty. At trial, he put forward only one
defense: that he believed Jen was an adult pretending to be a child—a type of
roleplaying in which he had previously engaged, according to his sole witness.

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After a one-day trial, the jury returned a verdict against Wolford. The district
court departed upward and sentenced him to 292 months in prison.
                                   II. DISCUSSION
       On appeal, Wolford argues that the district court erred in instructing the
jury, allowing the admission of testimonial evidence without cross-examination,
allowing the admission of evidence that was unduly prejudicial, calculating his
guideline sentencing range, and imposing a substantively unreasonable
sentence.1 We address each in turn.
                                A. Jury Instructions
       Wolford asserts that the district court erred by refusing to instruct the jury
that if Wolford believed he was communicating over the Internet with an adult,
his speech was protected by the First Amendment.
       This court reviews a trial court’s “refusal to include a requested jury
instruction for abuse of discretion, according the trial court substantial latitude
in formulating the charge” and will reverse only where the requested instruction
is correct and otherwise absent from the jury charge and its absence seriously
impairs the defendant’s ability to effectively present a given defense. United
States v. Loe, 248 F.3d 449, 459 (5th Cir. 2001).
       The First Amendment is not a defense to the charge of attempting to
entice a child to engage in illegal sexual activity under 18 U.S.C. § 2422 because
“[t]here is no First Amendment right to persuade minors to engage in illegal sex
acts.” United States v. Tykarsky, 446 F.3d 458, 473 (5th Cir. 2006). Therefore,
a proper jury instruction on the elements of the offense, particularly that the
defendant importuned a person “who he believed to be under the age of 18 years”


       1
         Wolford also raises two Confrontation Clause challenges to evidence introduced at
sentencing but concedes that these are foreclosed by circuit precedent. This is so. United
States v. Fields, 483 F.3d 313, 332 (5th Cir. 2007) (“In particular, the Confrontation Clause
does not operate to bar the introduction of testimonial hearsay at noncapital sentencing.”).
These issues are, however, preserved for any further proceedings.

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(as the jury instruction, in fact, put it), ensures that conviction will not lie where
speech is within the bounds of the First Amendment’s protections. Wolford was
not impaired from presenting his “roleplaying” defense, and had he convinced
the jury on that point, his speech would not have been subject to punishment
under § 2422. We also reject Wolford’s contention that, in the absence of his
proposed First Amendment instruction, the sheer offensiveness of his speech
might have led the jury to convict even had it found that he believed Jen to be
an adult. A jury is presumed to follow the court’s instructions, United States v.
Bernard, 299 F.3d 467, 476 (5th Cir. 2002), and the instructions here were
perfectly compatible with Wolford’s defense.
      The district court’s instruction of the jury was entirely proper.
                           B. Confrontation Clause
      Wolford’s run-in with Sergeant Milner was apparently not the first time
that he had been deceived by an online acquaintance. In 2006, he showed up at
a house that was being used for a “sting” operation conducted by the television
show “Dateline,” which called the segment “To Catch a Predator.” The show’s
modus operandi was essentially the same as that employed by Sergeant Milner.
It used online decoys to lure adults seeking to have sex with children. When
Wolford arrived at the house, he was confronted by a reporter, Chris Hansen,
and questioned about his intentions. Wolford argues that because Hansen was
not a live trial witness, the admission of portions of the interview transcript
violated his rights under the Confrontation Clause of the Sixth Amendment.
Alleged violations of the Confrontation Clause are “reviewed de novo, but are
subject to a harmless error analysis.” United States v. Bell, 367 F.3d 452, 465
(5th Cir.2004).
      The Confrontation Clause generally prohibits the admission of an out-of-
court “testimonial” statement made by a witness who does not appear at trial.
Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354 (2004). It is implicated


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only when “the out-of-court statement is used to prove the truth of the matter
asserted.” Jones v. Cain, 600 F.3d 527, 536 (5th Cir. 2010).
      Wolford’s Confrontation Clause argument fails because Hansen’s
statements do not speak to the truth of any matter. At the request of Wolford’s
counsel, the district court redacted statements by Hansen concerning the
behavior of typical child predators, the substance of Texas law, the legality of
Wolford’s conduct, and Hansen’s opinion of Wolford’s conduct. What remained
were questions that give context to Wolford’s statements and statements of fact
explicitly adopted by Wolford, such as the contents of messages that he had sent
to the online decoy. Because none of Hansen’s statements was a “declaration or
affirmation made for the purpose of establishing or proving some fact,”
Crawford, 541 U.S. at 51, admission of the transcript did not violate the
Confrontation Clause.
                         C. Evidentiary Challenges
      Wolford next argues that the district court erred in admitting into
evidence (a) transcripts of online conversations with anonymous third parties
that were found on his computer; (b) pornographic images of children that were
also found on his computer; (c) a list of pornographic websites that had been
bookmarked on his computer; and (d) still images captured from pornographic
videos that he sent to Jen.
      The chat transcripts and photos of child pornography, Wolford argues, are
evidence of prior acts that is relevant only to his character and are inadmissible
under Rule 404(b). Rule 404(b) requires the exclusion of evidence of crimes and
acts other than the conduct charged if it is employed “to prove the character of
a person in order to show action in conformity therewith.”         It allows the
admission of such evidence to show “proof of motive, opportunity, intent,
preparation, plan knowledge, identity, or absence of mistake or accident.” There
is no error if “the extrinsic evidence is relevant to an issue other than the


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defendant’s character” and it “possess[es] probative value that is not
substantially outweighed by its undue prejudice and [meets] the other
requirements of rule 403.” United States v. Beechum, 582 F.2d 898, 911 (5th Cir.
1978) (en banc).
      The transcripts speak to motive and intent. They contain statements from
Wolford expressing an interest in having sex with minor children and his
assertion that he had previously raped a minor. These statements cast doubt on
Wolford’s assertion that, when chatting with Jen, he believed he was roleplaying
with another adult.     Further, this “roleplaying” defense invested the chat
transcripts with great probative value.       By comparison, the risk of unfair
prejudice was minimal, given the already-graphic nature of the case and the
district court’s limiting instruction to the jury.
      The district court also determined that the pornographic images were
extremely probative to Wolford’s motive and intent.        They served to rebut
Wolford’s claim that he did not actually believe that the people he spoke with
were underage and to show that Wolford had the motive and intent to entice a
minor to engage in illegal sex acts.
      Though both the transcripts and images were undoubtedly prejudicial to
Wolford’s defense, under this court’s precedent, we cannot say that their
admission into evidence was an error or an abuse of discretion under Rule 403
or 404(b). See United States v. Layne, 43 F.3d 127, 134 (5th Cir. 1995) (child
pornography “more probative than prejudicial” when employed to demonstrate
scienter).
      Finally, Wolford argues that the district court erred in admitting into
evidence his bookmark list and still images captured from a video, to which
Wolford directed Jen, of a young girl and of Wolford himself in sexual conduct.
He also directed Jen to some of his “favorite” bookmarked sites. Under Rules
403 and 404(b), he asserts, this evidence was unfairly prejudicial. The evidence,


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however, was central to the crime being charged—enticement of a minor to
engage in unlawful sexual activity—and was therefore central to the
government’s overall approach to the case.              See United States v. Caldwell,
586 F.3d 338, 343 (5th Cir. 2009). Despite the prejudice, this evidence speaks
with great probity to Wolford’s identity, motive and intent and, even more so, to
his enticement, the actus reus of the offense. The district court did not err.
           D. The District Court’s Upward Departure at Sentencing
       Wolford asserts that the district court erred by finding that an upward
departure was justified under U.S.S.G. §§ 5K2.21 and 4A1.3(a)(1). In general,
this court reviews a district court’s decision to apply an upward departure for
abuse of discretion. United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006).
       For the first time on appeal, Wolford asserts that the district court erred
by concluding that an upward departure for his uncharged possession of child
pornography was authorized under U.S.S.G. § 5K2.21 because he did not enter
into a plea agreement. This court reviews his claim for plain error. United
States v. Reyna, 358 F.3d 344, 30 (5th Cir. 2004).
       Section 5K2.21 provides:
       The court may depart upward to reflect the actual seriousness of the
       offense based on conduct (1) underlying a charge dismissed as part
       of a plea agreement in the case, or underlying a potential charge not
       pursued in the case as part of a plea agreement or for any other
       reason; and (2) that did not enter into the determination of the
       applicable guideline range.
The plain language of § 5K2.21 rebuts Wolford’s contention: it is enough that the
departure be premised on conduct “underlying a potential charge not pursued
in the case . . . for any other reason.” The provision does not require a plea
agreement.2


       2
        This finding also resolves Wolford’s contention that the district court committed
procedural error by failing to appropriately calculate the extent of the upward departure under
§ 4A1.3(a)(4), an argument premised on impropriety of the district court’s departure under

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      Wolford next argues that the district court erred by applying an upward
departure, under U.S.S.G. § 4A1.3, for under-represented criminal history
because there was insufficient evidence to support the court’s factual findings.
      The sentencing court “is entitled to find by a preponderance of the
evidence all the facts relevant to the determination of a Guideline sentencing
range.” United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2007). Here, the
district court found by a preponderance of the evidence that Wolford had
committed two rapes of adult women and that he had admitted to the prior
offense of attempted enticement of a minor during the Dateline NBC encounter.
These findings were well supported by a variety of reliable information,
including police reports, victim statements, emails sent by the defendant, and
the aforementioned Dateline transcript.
      The upward departure was no abuse of discretion.
                     E. Substantive Unreasonableness
      Finally, Wolford challenges his 292-month sentence as excessive and
substantively unreasonable.
      “An upward departure by a district court is not an abuse of discretion if
the court’s reasons for departing 1) advance the objectives set forth in 18 U.S.C.
§ 3553(a)(2) and 2) are justified by the facts of the case.” United States v.
Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006) (internal quotation marks and
citation omitted).
      At sentencing, the district court commented on Wolford’s prior criminal
activity, including the rapes and the admitted offense of attempted enticement
of a minor, and noted that those offenses did not result in criminal convictions.
The court’s written Statement of Reasons similarly states that it departed from
the Guideline range pursuant to § 4A1.3(a)(1) because the defendant’s criminal



§ 5K2.21.

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history category substantially under-represents the seriousness of his criminal
history and the likelihood that Wolford will commit other sex-related crimes in
the future. The district court concluded at sentencing that an upward departure
would advance the objectives contained in § 3553(a)(2) and was justified on the
facts of the case.
      Given the district court’s extensive analysis and the clear factual basis for
the departure, the district court did not abuse its discretion in departing from
the Guidelines. See Zuniga-Peralta, 442 F.3d at 348.
                              III. CONCLUSION
      For the reasons discussed above, the conviction and sentence of Randall
Howard Wolford are AFFIRMED.




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