            Case: 13-10544   Date Filed: 03/13/2014   Page: 1 of 11


                                                          [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 13-10544
                          Non-Argument Calendar
                        ________________________

                   D.C. Docket No. 1:12-cr-00153-WS-C-1



UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                   versus

MURALI KRISHNA A. REDDY,
a.k.a. pravincrazyxxx@yahoo.com,

                                                       Defendant-Appellant.

                        ________________________

                 Appeal from the United States District Court
                    for the Southern District of Alabama
                        ________________________

                              (March 13, 2014)

Before WILSON, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM:
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      Murali Krishna Reddy appeals his conviction for attempting to use a facility

of interstate commerce to knowingly persuade, induce, entice, or coerce a minor to

engage in sexual activity, in violation of 18 U.S.C. § 2422(b). Mr. Reddy became

the subject of an undercover law enforcement operation after an officer using the

persona of a 15-year-old boy named “Steven” responded to Mr. Reddy’s online

Craigslist ad for oral sex. Through a series of e-mails and text messages, Mr.

Reddy set up a meeting with “Steven” for oral sex. Officers arrested Mr. Reddy

upon his arrival at the designated meeting place.

      Mr. Reddy challenges his conviction on three grounds: (1) the evidence

presented at trial was insufficient to support his conviction because he did not learn

that “Steven” was 15 years old until after “Steven” had assented to engage in

sexual activity; (2) the district court’s jury instructions constructively amended his

indictment by including attempt to violate 18 U.S.C. § 2422(b), where the

indictment did not clearly allege attempt; and (3) multiple instances of

prosecutorial misconduct during closing arguments deprived him of a fair trial.

      After carefully reviewing the parties’ briefs and the relevant portions of the

records, we affirm.

                            I. Sufficiency of Evidence

      We review de novo a verdict challenged for sufficiency of the evidence.

United States v. Farley, 607 F.3d 1294, 1333 (11th Cir. 2010). We view the


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evidence in the light most favorable to the government and resolve all reasonable

inferences and credibility evaluations in favor of the jury’s verdict. United States

v. Doe, 661 F.3d 550, 560 (11th Cir. 2011).

       To sustain a conviction for a crime of attempt under 18 U.S.C. § 2422(b),

the government first must prove (1) that the defendant acted with the specific intent

to persuade, induce, entice, or coerce a minor 1 to engage in unlawful sexual

activity, and (2) that he took a substantial step toward the commission of the

offense. United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004). As to

intent, the government must prove that the “defendant intended to cause assent on

the part of the minor,” not that he acted with the specific intent to engage in the

sexual activity. United States v. Lee, 603 F.3d 904, 913 (11th Cir. 2010). An

attempt to “stimulate or cause the minor to engage in sexual activity” fits the

statutory definition of persuasion or inducement. Murrell, 368 F.3d at 1287.

       “A substantial step can be shown when the defendant’s objective acts mark

his conduct as criminal and, as a whole, strongly corroborate the required

culpability.” United States v. Yost, 479 F.3d 815, 819 (11th Cir. 2007) (quotation

omitted). In Murrell, for example, we held that the defendant, who had arranged to

have sex with a minor at a hotel, took a substantial step toward his goal of inducing
       1
          A defendant can be convicted of an attempt offense under 18 U.S.C. § 2422(b) even if
there is no actual minor victim. See United States v. Root, 296 F.3d 1222, 1227 (11th Cir. 2002)
(holding that the defendant’s “belief that a minor was involved is sufficient to sustain an attempt
conviction”), superseded by Guideline amendment on other grounds, as recognized in United
States v. Jerchower, 631 F.3d 1181, 1186-87 (11th Cir. 2011).
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her to engage in sexual activity because he (1) made incriminating statements to an

undercover law enforcement officer; (2) traveled several hours to meet the girl at

the hotel; and (3) brought with him a teddy bear, money to pay the girl’s father,

and a box of condoms. Murrell, 368 F.3d at 1288. See also Yost, 479 F.3d at 820

(holding that the defendant took a substantial step that “crossed the line from mere

‘talk’ to inducement” by placing a call to an undercover officer posing as a minor,

posting sexually explicit pictures online, and making arrangements to meet the

minor).

       Here, the evidence was sufficient to support Mr. Reddy’s conviction for an

attempt offense under § 2422(b).

       First, there was sufficient evidence for the jury to find that Mr. Reddy

intended to cause a minor to assent to unlawful sexual activity. See Lee, 603 F.3d

at 914. Throughout their e-mail and text-message correspondence, Mr. Reddy

specifically and repeatedly asked the 15-year-old “Steven” whether he agreed to

perform oral sex.2       Additionally, the correspondence showed that Mr. Reddy

intended to induce “Steven” to engage in oral sex by discussing with him where




       2
          Although some of Mr. Reddy’s comments were rather sheepish and betrayed worry that
“Steven” would not want to go through with the plan (e.g., “r u sure u wanna do this?” or “i am
not among those cute asian guys”), a jury could very reasonably interpret these comments as
designed to shore up “Steven’s” assent and thus “stimulate or cause [him] to engage in sexual
activity.” See Murrell, 368 F.3d at 1287. Indeed, sheepish enticement is still enticement.


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they could meet, sending him a photo, asking him whether he had “done it before,”

and mentioning the size of his own genitalia. See Murrell, 368 F.3d at 1287.3

       Second, there was sufficient evidence for the jury to find that Mr. Reddy

took a “substantial step” toward causing “Steven” to assent to sexual contact with

him. See Lee, 603 F.3d at 915. Mr. Reddy asked for “Steven’s” phone number

and initiated a text-message conversation, during which he explicitly propositioned

“Steven” for oral sex. See Yost, 479 F.3d at 820 (finding that a call placed to an

undercover officer posing as a minor constituted a substantial step); Murrell, 368

F.3d at 1288 (finding that incriminating statements to an undercover officer

constituted a substantial step).        Mr. Reddy also made arrangements to meet

“Steven” at a specified location, and he later drove to that location. See Yost, 479

F.3d at 820; Murrell, 368 F.3d at 1288.

       Mr. Reddy’s argument that “Steven” agreed to oral sex before revealing his

age—and that consequently Mr. Reddy neither had the intent nor took a substantial

step to cause a minor’s assent—fails for two reasons. For starters, the record is

unclear as to whether “Steven” assented to perform a specific sexual activity

before telling Mr. Reddy that he was 15 years old. “Steven’s” first e-mail to Mr.

Reddy stated that he “was interested,” and his second e-mail gave his age as 15 and
       3
         The fact that Mr. Reddy did not post his initial ad on a forum designed for adults to
meet minors, unlike the defendants in Murrell and Yost, does not take his subsequent conduct out
of § 2422(b)’s scope. After he learned “Steven” was only 15 years old, he continued to make
comments—e.g. “u wanna suck me?”—that a jury could reasonably interpret as intended to
“cause the minor to engage in sexual activity.” See Murrell, 368 F.3d at 1287.
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discussed whether Mr. Reddy would “host.”                 In neither e-mail, however, did

“Steven” expressly state that he assented to oral sex or any other sexual activity.

In addition, the record is clear that once Mr. Reddy learned that “Steven” was 15

years old, he specifically and repeatedly asked “Steven” if he would assent to

perform oral sex. See Lee, 603 F.3d at 914.

       Thus, the evidence was sufficient to support both the intent and the

substantial step requirements for an attempt offense under § 2422(b). 4

                     II. Constructive Amendment of Indictment

       We review jury instructions de novo to determine whether they misstated the

law or misled the jury. United States v. Simpson, 228 F.3d 1294, 1298 (11th Cir.

2000). Constructive amendment of an indictment generally constitutes per se

reversible error. United States v. Behety, 32 F.3d 503, 508 (11th Cir. 1994). We

recently held, however, that “in cases where the defendant fails to object to a

constructive amendment, we apply traditional plain-error review.” United States v.

Madden, 733 F.3d 1314, 1322 (11th Cir. 2013) (11th Cir. 2013).


       4
          Mr. Reddy argues that even if there is sufficient evidence to convict him, we should
recommend this case for en banc review so that we may reconsider the definition of
“inducement” as used in the context of § 2422(b). We decline the invitation. An en banc
hearing “an extraordinary procedure intended to bring to the attention of the entire court a
precedent-setting error of exceptional importance in an appeal or other proceeding,” as well as “a
panel opinion that is allegedly in direct conflict with precedent of the Supreme Court or of this
circuit.” 11th Cir. R. 35-3. No such circumstances exist here. Mr. Reddy concedes that we are
bound by the definition of “inducement” given in Murrell, 368 F.3d at 1287. Although he argues
that this definition conflicts with other courts’ definitions, he does not contend that Murrell
conflicts with our precedent or with a Supreme Court decision.
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        A constructive amendment occurs “when the essential elements of the

offense contained in the indictment are altered to broaden the possible bases for

conviction beyond what is contained in the indictment.” United States v. Keller,

916 F.2d 628, 634 (11th Cir. 1990). A constructive amendment does not occur

simply because a “jury instruction did not exactly match the form of the

indictment,” so long as “the substance of the indictment remained intact.” United

States v. Moore, 525 F.3d 1033, 1046 (11th Cir. 2008). In determining whether an

indictment is sufficient, we read it as a whole and give it a “common sense

construction.” United States v. Jordan, 582 F.3d 1239, 1245 (11th Cir. 2009)

(quotations omitted). Additionally, “[t]he law is well established that where an

indictment charges in the conjunctive several means of violating a statute, a

conviction may be obtained on proof of only one of the means, and accordingly the

jury instruction may properly be framed in the disjunctive.” Simpson, 228 F.3d at

1300.

        We review whether the district court constructively amended Reddy’s

indictment for plain error because Mr. Reddy failed to raise objections on the

matter before the court. See Madden, 733 F.3d at 1322. The district court did not

plainly err because the jury’s instructions reflected the substance of the indictment.

See Moore, 525 F.3d at 1046. The indictment alleged that Reddy had “used and

attempted to use a facility of interstate commerce . . . to knowingly persuade,


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induce, entice, and coerce” a minor to engage in a sexual activity.” The “common

sense construction” of this language is that it conjunctively charged Mr. Reddy

with both the attempted and completed offense. See Jordan, 582 F.3d 1239, 1245.

The indictment’s use of the conjunctive, in turn, allowed the jury to be charged that

the government need only prove the attempted offense. See Simpson, 228 F.3d at

1300. 5

       Accordingly, the district court did not constructively amend the indictment,

and thus did not commit plain error. See Madden, 733 F.3d at 1322; Moore, 525

F.3d at 1046.

                             III. Prosecutorial Misconduct

       Finally, Mr. Reddy argues that he was deprived of a fair trial due to multiple

instances of prosecutorial misconduct during closing arguments. We ordinarily

review a claim of prosecutorial misconduct de novo. United States v. Merrill, 513

F.3d 1293, 1306 (11th Cir. 2008). “However, with respect to a prosecutor’s

statements made during closing where the defendant did not raise this objection at

trial, we review only for plain error,” which is an error that is “so obvious that

failure to correct it would jeopardize the fairness and integrity of the trial.” Id. at

1306-07 (quotation omitted).         To establish prosecutorial misconduct, “(1) the
       5
         Mr. Reddy’s suggested interpretation of his indictment—that the word “attempt”
modified only the phrase “to use a facility of interstate commerce”—does not make sense. Mr.
Redding could never complete his persuasion, inducement, enticement, or coercion of a minor if
he attempted, but failed, to use an interstate-commerce facility. Thus, logically, “attempt” can
only be understood to modify the entire sentence including “persuade, induce, entice. . . .”
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remarks must be improper, and (2) the remarks must prejudicially affect the

substantial rights of the defendant.”              Id. at 1307 (quotation omitted).           A

defendant’s substantial rights are prejudicially affected when a reasonable

probability arises that, but for the remarks, the outcome of the trial would have

been different. United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006).

       As Mr. Reddy did not raise any objections to the government’s closing

argument, we review for plain error. See Merrill, 513 F.3d 1306-07. Mr. Reddy

challenges three statements that the government made during closing argument: (1)

references to Mr. Reddy’s position as a pediatrician that were allegedly designed to

enflame the jury’s emotions; 6 (2) references to Mr. Reddy’s subpoena power that

improperly shifted the burden of proof onto Mr. Redding; 7 and (3) a statement that

improperly bolstered the testifying police officers’ credibility. 8

       Of these three statements, only the first is potentially improper.                   The

statement regarding Mr. Redding’s subpoena power was proper because Mr.

Redding had specifically called attention to the government’s failure to call the
       6
         The prosecutor referred to Mr. Reddy as “a pediatric resident,” “a doctor who’s
supposed to heal children and instead is trying to hurt one.” He further stated that Mr. Redding
had “a responsibility to take care of children. He abused that. He took advantage of it, and that
is wrong.”
       7
         In response to Mr. Redding’s statement to the jury that the government failed to call a
certain witness, the prosecutor stated that Mr. Reddy “can compel anybody to be here. That’s
one of the rights that the Defendant has. The Court can issue subpoenas and compel anybody to
be here and testify.”
       8
          The prosecutor stated that the investigating officers had “no motive for coming in here
and telling you a lie, risking their careers, risking their futures, risking their reputations.”
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witness in question. See United States v. Hernandez, 145 F.3d 1433, 1439 (11th

Cir. 1998) (quotation omitted) (“[I]t is not improper for a prosecutor to note that

the defendant has the same subpoena powers as the government, particularly when

done in response to a defendant’s argument about the prosecutor’s failure to call a

specific witness.”). The statement regarding the testifying police officers was not

improper bolstering because it merely “acknowledg[ed] that adverse legal

consequences would flow from lying under oath” and responded to Mr. Redding’s

strategy “to attack and undermine the credibility” of the officers, both of which are

permissible. See United States v. Bernal-Benitez, 594 F.3d 1303, 1314 (11th Cir.

2010).

      As to the statement regarding Mr. Redding’s being a pediatrician, it was

improper because his job was irrelevant to whether he had violated 18 U.S.C.

§ 2422(b). However, Mr. Reddy cannot demonstrate prejudice in light of the

strong independent evidence of his guilt. The emails and text messages that he

sent to “Steven” propositioning him for oral sex, as well as his arrival at the

designated meeting place, provided an ample basis for the jury to convict him. He

has thus not shown “a reasonable probability . . . that, but for the remarks, the

outcome of the trial would have been different.” See Eckhardt, 466 F.3d at 947.

Moreover, the curative effect of the district court’s repeated advisements to the

jury that attorneys’ statements were not evidence weigh against Mr. Reddy’s claim.


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See United States v. Lopez, 590 F.3d 1238, 1256 (11th Cir. 2009) (“Prosecutorial

misconduct must be considered in the context of the entire trial, along with any

curative instruction.”).

                                      III.

      Mr. Reddy’s conviction for an attempt offense under 18 U.S.C. § 2422(b) is

affirmed.

      AFFIRMED.




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