                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                       FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                         ________________________   ELEVENTH CIRCUIT
                                                                 JUNE 8, 2010
                               No. 09-13070                       JOHN LEY
                           Non-Argument Calendar                    CLERK
                         ________________________

                  D. C. Docket No. 08-00415-CR-LSC-PWG

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

PRINCE KNIGHT,

                                                            Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Alabama
                        _________________________

                                 (June 8, 2010)

Before BIRCH, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

     Prince Knight appeals his convictions for traveling in interstate commerce
for the purpose of engaging in illicit sexual activity with a minor, in violation of 18

U.S.C. § 2423(b) (count one), and transporting a minor in interstate commerce with

the intent that the minor engage in sexual activity, in violation of 18 U.S.C.

§ 2423(a) (count two). He contends there was insufficient evidence to support his

convictions. Additionally, he submits that the repeated use of the word “rape” by

the prosecutor and victim during his trial violated his due process rights. After

careful review of the record, we AFFIRM.

                                 I. BACKGROUND

      In December 2007, when S.S. was 15 years old, she asked 37-year-old

Knight, a family friend she had known for eight years, to take her from Kansas to

California at some point in the near future to visit her ailing biological father.

Knight, who was in Kansas visiting his children, frequently contacted S.S. after he

returned to his home in Alabama. During the last two weeks of January 2008,

Knight called S.S. 107 times.

      On 28 January 2008, Knight picked up S.S. in Kansas as planned. S.S.

thought Knight was going to drive her to California. Once she got into the car,

though, Knight told her that “the plans have changed.” Doc. 55 at 33. Knight said

he was taking her back to Alabama to live with him because he had “feelings” for

her. Id. at 34-36. Upon Knight’s instruction, S.S. threw her cell phone out the



                                            2
window so that it could not be tracked by the police. Knight pulled out his gun and

said it was for protection. S.S. felt panicked and scared. Knight warned S.S. that

they would both go to jail if caught and she would never see her family again.

S.S.’s mother or stepfather never gave Knight permission to take S.S. anywhere.

       Upon arriving at Knight’s apartment in Alabama, Knight threw S.S. on the

bed, took off her clothes, and “raped” her by having sexual intercourse. Id. at 38-

40. S.S. told him no and tried to push him off. Afterwards, Knight left to return a

rental car. Knight moved S.S. to his mother’s home two days later after a detective

called him. Knight had non-consensual sex with S.S. a total of six to eight times

before police rescued her from his mother’s home on 8 February 2008.

           A search of Knight’s vehicle yielded a camera containing photos of Knight

and S.S. kissing during Knight’s December 2007 visit to Kansas. S.S. testified she

never wanted to kiss Knight or have sex with him. Rental car receipts reflected

that Knight picked up a rental car on 26 January 2008, to be returned on 29 January

2008. The total miles driven were approximately the same miles required for a

round trip between Knight’s home city in Alabama and S.S.’s residence in Kansas.

       Following a jury trial and guilty verdict on counts one and two,1 the court

sentenced Knight to 327 months of imprisonment on each count, to run


       1
         The jury acquitted Knight of a third count of knowingly inveigling and carrying away a
minor, in violation of 18 U.S.C. §§ 1201(a), (g).

                                               3
concurrently, and supervised release for life.

      This appeal followed.

                                  II. DISCUSSION

A. Sufficiency of the Evidence

      Knight first contends there was insufficient evidence to support his

convictions under 18 U.S.C. §§ 2423(a), (b) because the government failed to

establish that he intended to have illicit sexual relations with S.S. before he arrived

in Alabama. Knight points out that S.S. described him as a family friend, and he

asserts they never had a sexual relationship in Kansas. Furthermore, Knight argues

there was no evidence to corroborate S.S.’s testimony that they had sexual

intercourse in Alabama.

      We review de novo whether there is sufficient evidence in the record to

support a jury’s verdict. United States v. Maxwell, 579 F.3d 1282, 1299 (11th Cir.

2009). We will affirm if “a reasonable trier of fact could find that the evidence

established guilt beyond a reasonable doubt.” Id. (quotation marks and citation

omitted). “A federal conviction . . . can be based on the uncorroborated testimony

of a single witness.” United States v. Hoskins, 628 F.2d 295, 296 (5th Cir. 1980)

(per curiam). Since the jury is free to choose among reasonable constructions of

the evidence, we must accept any credibility determination it makes that is



                                           4
reasonable. United States v. Garcia, 447 F.3d 1327, 1334 (11th Cir. 2006).

However, we may reverse a conviction if testimony credited by the jury “is so

inherently incredible, so contrary to the teachings of basic human experience, so

completely at odds with ordinary common sense, that no reasonable person would

believe it beyond a reasonable doubt.” United States v. Chancey, 715 F.2d 543,

546, 548 (11th Cir. 1983).

      18 U.S.C. § 2423 prohibits the following transportation of minors:

      (a) Transportation with intent to engage in criminal sexual
      activity. – A person who knowingly transports an individual who has
      not attained the age of 18 years in interstate or foreign commerce . . .,
      with intent that the individual engage in . . . any sexual activity for
      which any person can be charged with a criminal offense, shall be
      fined under this title and imprisoned not less than ten years or for life.

      (b) Travel with intent to engage in illicit sexual conduct. – A
      person who travels in interstate commerce . . . , for the purpose of
      engaging in any illicit sexual conduct with another person shall be
      fined under this title or imprisoned not more than 30 years, or both.

18 U.S.C. § 2423 (2009). “The statute does not require that the government prove

that actual sexual activity took place,” only that the defendant “formed the intent to

engage in sexual activity with a minor when he crossed state lines.” United States

v. Hersh, 297 F.3d 1233, 1245-46 (11th Cir. 2002). However, a defendant’s intent

may be bolstered by evidence that the defendant did engage in sexual activities

with the minor after crossing state lines. See id. at 1247 (concluding that



                                           5
defendant’s intent “was further established by the fact that upon returning from

Honduras to Florida, he continued to engage in sexual activities with Juan, a

minor”).

      Contrary to Knight’s contention, the evidence sufficiently established his

intent to engage in sexual activity with S.S. before he completed his interstate

journey. The government introduced photographs depicting Knight and S.S.

kissing in December 2007, something which S.S. said she did not want to do.

Phone records showed that he called S.S. approximately 100 times in the weeks

leading up to their planned trip. Although Knight agreed to drive S.S. to

California, rental car receipts indicated that he only rented a car from Alabama for

a three-day period. He immediately told her upon picking her up that “plans have

changed” and he would be taking her back to Alabama to live with him because he

had feelings for her. He instructed her to throw away her cell phone so she could

not be tracked by the police and warned her that they would go to jail if caught.

All of this evidence demonstrated that, prior to their arrival in Alabama, Knight

had formed the intent to have illicit sexual relations with S.S.

      Moreover, Knight’s intent to have sexual relations with S.S. was bolstered

by S.S.’s testimony that as soon as they arrived at his residence in Alabama,

Knight pushed her on the bed, took off her clothes, and had sexual intercourse with

her despite her protests and attempts to fight him off. These non-consensual sexual

                                           6
activities continued until she was rescued by the police. Such evidence supports a

finding of intent. See id. Although Knight disputes S.S.’s testimony on appeal, it

was up to the jury to assess her credibility. See Chancey, 715 F.2d at 546. Her

description of what happened is not inherently incredible or contrary to common

sense. See id. Accordingly, viewing the evidence in the light most favorable to

the verdict, we conclude there was sufficient evidence to establish Knight’s

requisite intent on counts one and two.

B. Due Process Violation

      Knight next asserts that his due process rights were infringed when the

prosecutor repeatedly used the word “rape” and encouraged S.S. to do so as well.

The disputed testimony occurred during direct examination of S.S.:

      Q. After he took off your clothes, what happened?
      A. He raped me.
      Q. When you say he raped you, did there come a time where he put
      his fingers inside your vagina?
      A. Yes.
      Q. Did there come a time where he put his penis inside your vagina?
      A. Yes.
      Q. Is that what you mean when you say he raped you?
      A. Yes.
      Q. Did you want him to put his fingers or his penis in your vagina?
      A. No.
      ....
      Q. After Prince Knight raped you, what happened?
      A. We went to sleep.
      Q. Do you know if he ever left to return the car?
      A. Yes, he did.
      Q. When did he leave to return the car?

                                          7
       A. After.
       Q. After he raped you?
       A. Yes.
              Mr. Williams: Objection, your Honor. Using the term rape, it’s
       a legal term for the jury to decide.
              The Court: Overruled.
       Q. Did he return the car before he went to sleep?
       A. Yes.
       Q. How long do you think you were in the defendant’s apartment
       before he raped you?
       A. Ten to [fifteen] minutes.

Doc. 55 at 39-41. According to Knight, the prosecutor’s repeated use of the word

“rape” was designed to inflame the jury and prevent a rational assessment of the

evidence.

       We review this issue for plain error as Knight did not object at trial on the

ground asserted here. See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th

Cir. 2005) (“Because Rodriguez did not object on this basis in the district court,

our review is only for plain error.”). Under this standard, Knight must show there

is: “(1) error, (2) that is plain, and (3) that affects substantial rights.” Id.

(quotation marks and citation omitted). Additionally, the error must seriously

affect “the fairness, integrity, or public reputation of judicial proceedings.” Id.

(quotation marks and citation omitted). This test is difficult to satisfy and requires

an appellant to overcome a “daunting obstacle.” Id. (quotation marks and citation

omitted).

       A prosecutor’s statements may justify a reversal of a conviction only if “they

                                             8
undermined the fairness of the trial and contributed to a miscarriage of justice.”

United States v. Jacoby, 955 F.2d 1527, 1541 (11th Cir. 1992) (quotation marks

and citation omitted). Prosecutorial misconduct requires a showing that a

prosecutor made improper remarks, and that those remarks prejudicially affected

the defendant’s substantial rights. United States v. Merrill, 513 F.3d 1293, 1307

(11th Cir. 2008). Prejudice is demonstrated if there is a reasonable probability

that, but for the remarks, the trial’s outcome would have been different. Id. If

there is sufficient independent evidence of guilt, however, any error is harmless.

Id. We must consider the whole record in determining whether prosecutorial

misconduct occurred. See Jacoby, 955 F.2d at 1541.

       The prosecutor’s repeated use of the word “rape” was neither improper nor

unduly prejudicial in this case. As the trial transcript reflects, the prosecutor

initially used the term in order to clarify what S.S. meant when she said Knight

“raped” her. After S.S. explained that Knight had forced her to have sex with him,

the prosecutor continued to use the word “rape” when referring to her sexual act

with Knight. Under Alabama law, a person over the age of 16 commits the crime

of rape in the second degree if he has sexual intercourse with a female between the

ages of 12 and 16, and he is at least two years older than she is.2 See Ala. Code


       2
           The jury was instructed on this definition of rape prior to its deliberations. Doc. 56 at
256.

                                                   9
§ 13A-6-62(a) (2005). Given that the term “rape” correctly characterized S.S.’s

testimony, Knight has not shown that the prosecutor’s (or S.S.’s) use of that word

was improper. Furthermore, Knight has failed to establish that the prosecutor’s

conduct prejudicially affected his substantial rights. See Merrill, 513 F.3d at 1307.

Knight does not argue that a reasonable probability exists that the outcome of the

proceeding would have been different but for the prosecutor’s use of the word

“rape.” There was also ample independent evidence, as previously discussed, to

support Knight’s convictions. Viewed in the context of the entire record, the

repeated use of the word “rape” did not “undermine the fairness of the trial or

result in a miscarriage of justice.” Jacoby, 955 F.2d at 1541. Accordingly, no

error, plain or otherwise, has been shown.

                               III. CONCLUSION

      We conclude that there was sufficient evidence to support Knight’s

convictions and that his due process rights were not violated by the use of the term

“rape” at his trial. We therefore AFFIRM Knight’s convictions.

      AFFIRMED.




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