                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                            No. 11-11481         ELEVENTH CIRCUIT
                                        Non-Argument Calendar       MARCH 9, 2012
                                      ________________________        JOHN LEY
                                                                       CLERK
                          D.C. Docket No. 1:09-cr-00170-RWS-CCH-1



UNITED STATES OF AMERICA,

lllllllllllllllllllllllllllllllllllllll                               lPlaintiff-Appellee,


                                               versus


MICHAEL MACALUSO,

llllllllllllllllllllllllllllllllllllllll                            Defendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                              for the Northern District of Georgia
                                 ________________________

                                           (March 9, 2012)



Before TJOFLAT, EDMONDSON and KRAVITCH, Circuit Judges.
PER CURIAM:

      Michael Macaluso appeals his convictions and 360-month sentence for

inducing a minor to produce pornography, in violation of 18 U.S.C. § 2251(a);

distributing child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A);

receiving child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A); and

attempting to induce a minor to engage in illegal sexual activity, in violation of 18

U.S.C. § 2422(b). After a thorough review of the record, we affirm.

      I. The Offenses

      Macaluso was charged with eight counts of child-pornography-related

crimes. Counts One through Four involved a fourteen-year-old boy named Jason.

According to the evidence at trial, Macaluso contacted Jason through a social

networking site and, over time, the two engaged in numerous conversations. At

first, the two exchanged clothed photographs, but eventually Macaluso asked

Jason to create sexually explicit images and videos. Jason sent Macaluso several

images, videos, and drawings. The two continued to communicate until

Macaluso’s messages became erratic and he began to express suicidal thoughts.

Jason then terminated his contact with Macaluso.

      Several months later, however, Macaluso contacted Jason again. When

Jason refused to make and send additional explicit images and videos, Macaluso

                                          2
threatened to “out” Jason to his entire school. Jason contacted the police, who

eventually traced the email IP address to an apartment shared by Macaluso and his

partner Paul Hobbs. A search of that apartment uncovered computers, external

hard drives, disks, and CDs. Macaluso told police that all the computer equipment

belonged to him. Police confirmed that Hobbs was not home on the day of one of

the chats between Jason and Macaluso.

      Both computers contained images of minor boys, but none of the images

were of Jason. On one computer, experts found a folder in Macaluso’s name with

the screen name used to contact Jason. Jason’s Facebook page was also

“bookmarked.” The two hard drives found contained documents belonging to

Macaluso, and there was no evidence Hobbs accessed these drives. One of the

hard drives contained 3,200 separate folders organized by name, usually by boys’

names. These folders held pornographic images of boys, including Jason. After

his arrest on state charges in connection with these images, Macaluso instructed

his attorney to tell police that he alone was responsible and Hobbs was not

involved.

      Counts Five through Eight involved a thirteen-year-old boy named Zachary.

According to the evidence at trial, Macaluso posed as a sixteen-year-old girl and

exchanged sexual images with Zachary. Macaluso was very specific about the

                                         3
images he wanted Zachary to send him. He instructed Zachary to take naked

photos holding various signs. In one photo, Zachary held a sign reading “Happy

Birthday Michael. I love you forever.” This photograph was date-stamped on

Macaluso’s birthday. When Zachary later tried to end the relationship, Macaluso

threatened to post the images on the internet. Zachary’s parents found some of the

photographs and contacted police, who traced the IP address to a home where

Macaluso was staying. A search of the home found multiple computers and

external hard drives. Experts uncovered images of Zachary on Macaluso’s

computer, which was password protected. Experts also found a collection of child

pornography on one of the external hard drives. The two hard drives held over

3,000 folders, several of which contained photographs of Zachary. After

Macaluso was indicted on federal charges, agents searched his offices and seized a

laptop computer with links to Zachary’s Myspace page.

      II. The Trial

      The government proffered transcripts of the instant messenger chats

between Macaluso and the two victims. Macaluso objected to the evidence as

unauthenticated, irrelevant, and hearsay. The court admitted the evidence because

the victims were able to testify to the contents. The court also admitted, over

Macaluso’s objection, Exhibit 126, which consisted of screen shots from a web-

                                         4
camera interaction between Macaluso and another person in which Macaluso and

the name Michael were visible. The shots were sexual in nature and, during the

video session, Macaluso instructed the young man to engage in sexual positions

that were similar to the positions Jason and Zachary had used. The court

concluded that the evidence was relevant because it was found on the same hard

drive as the images of Zachary and thus could show usership. The court did not

admit any images from the computer seized at Macaluso’s office.

      Macaluso called Tyler Fridley, who testified that he was with Macaluso on

the night Macaluso allegedly sent some of the emails to Jason. Fridley stated that

he had not seen Macaluso use a computer or cell phone that night.

      The court instructed the jury that it could convict Macaluso if he “induced”

a minor to engage in sexually explicit conduct. The court defined “induce” as “to

stimulate the occurrence or to cause.” The court did not use the term “knowingly.”

Macaluso objected on the ground that omitting the “knowingly” requirement

constructively amended the indictment. The court overruled the objection. The

jury convicted Macaluso of all counts.

      III. Sentencing

      In determining the applicable guideline range, the probation officer noted

that the 18 U.S.C. § 2252A(a)(2)(A) counts were grouped together (Counts Two,

                                         5
Three, Six, and Seven). The remaining counts under § 2251(a) (Counts One and

Five) and § 2422(b) (Counts Four and Eight) could not be grouped. The probation

officer applied two enhancements relevant to the issues on appeal: First, under

U.S.S.G. § 2G2.1(b)(4), Macaluso faced an enhancement for sadistic conduct

based on images of Jason penetrating himself with a screwdriver and candle.

Second, under § 2G2.2(b)(3)(D), his guideline range was enhanced because he

distributed child pornography to a minor to induce the victim to engage in illegal

activity. The resulting guideline calculations resulted in a combined adjusted

offense level of 47 and a criminal history category I, which yielded a range of life

imprisonment.

      Macaluso objected to the two enhancements listed above. The district court

overruled the objections. In imposing sentence, the court stated that it had

considered the sentencing factors in 18 U.S.C. § 3553(a) and the arguments on

both sides. The court noted the “heinous” nature of the crimes and how serious

the offenses were. The court considered the need to punish Macaluso, deter future

conduct, offer rehabilitation, and protect the public. The court also considered

disparity in sentences for similar crimes. Stating that a “substantial sentence is

warranted in this case,” the court sentenced Macaluso to 360 months’

imprisonment on Counts One, Four, Five, and Eight, and 240 months’

                                          6
imprisonment on the remaining counts, all to run concurrently.

       IV. The Appeal

       Macaluso now appeals, raising the following issues: (1) the evidence was

insufficient to support his convictions; (2) the district court erred in admitting

images of Macaluso engaging in a sexually explicit video-chat and images of child

pornography that were unrelated to the charged conduct; (3) the court erred in

denying his motion for a mistrial based on prosecutorial misconduct; (4) the court

erred in admitting evidence of purported online communication between Macaluso

and the victims because the messages were not properly authenticated; (5) the

court erroneously instructed the jury on the elements of inducing a minor to

produce pornography; and (6) the court erred in applying enhancements when

calculating the guideline range. We address each issue in turn.

               A.      Sufficiency of the Evidence1

       We review de novo a district court’s denial of a judgment of acquittal on

sufficiency of the evidence grounds. United States v. Browne, 505 F.3d 1229,

1253 (11th Cir. 2007). We “must view the evidence in the light most favorable to

the government and decide whether a reasonable fact finder could have reached a


       1
         Macaluso moved for judgment of acquittal at the close of the government’s case-in-chief
and again after he presented his defense. Thus, he has preserved his challenge to the sufficiency of
the evidence.

                                                 7
conclusion of guilt beyond a reasonable doubt.” United States v. Herrera, 931

F.2d 761, 762 (11th Cir. 1991). We will not disturb a jury verdict “if any

reasonable construction of the evidence would have allowed the jury to find the

defendant guilty beyond a reasonable doubt.” Id. The “evidence need not be

inconsistent with every reasonable hypothesis except guilt, and the jury is free to

choose between or among the reasonable conclusions to be drawn from the

evidence presented at trial.” United States v. Hernandez, 896 F.2d 513, 517 (11th

Cir. 1990).

      In order to convict Macaluso on Counts Four and Eight, attempt to induce a

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

government must prove beyond a reasonable doubt that Macaluso: (1) intended to

cause assent on the part of the minor to engage in the sexual activity and (2) took a

substantial step toward causing such assent. United States v. Lee, 603 F.3d 904,

914 (11th Cir.), cert. denied, 131 S.Ct. 437 (2010). Additionally, the sexual

activity must be one for which “any person can be charged with a criminal

offense.” 18 U.S.C. § 2422(b). This includes the production of child pornography.

18 U.S.C. § 2427. Further, under the relevant state law, it is unlawful for anyone

to entice or coerce a minor to engage in “any sexually explicit conduct for the

purpose of producing” child pornography. O.C.G.A. § 16-12-100(b)(1).

                                          8
      As to Counts One and Five, inducement of a minor to engage in sexual

activity for the purpose of producing child pornography in violation of 18 U.S.C.

§ 2251(a), that statute proscribes the same conduct as § 2422(b). Lee, 603 F.3d at

913; United States v. Searcy, 418 F.3d 1193, 1196-97 (11th Cir. 2005) (applying

§ 2251(a) case law to interpret § 2422(b) because “[b]oth statutes aim to

criminalize the enticement of a minor to engage in sexual activity”).

      In order to convict Macaluso on Counts Two and Six, distribution of child

pornography in violation of 18 U.S.C. § 2252A(a)(2)(A), the government must

prove that he: (1) knowingly, (2) distributed, (3) child pornography, (4) in

interstate commerce, (5) in the belief that it was child pornography. 18 U.S.C.

§ 2252A(a)(2)(A); United States v. Acheson, 195 F.3d 645, 653 (11th Cir. 1999).

      Finally, in order to convict Macaluso on Counts Three and Seven, receipt of

child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A), the government

must prove that he intentionally viewed, acquired, or received child pornography

from an outside source, using any means or facility of interstate commerce.

United States v. Pruitt, 638 F.3d 763, 766 (11th Cir.), cert. denied, 132 S.Ct. 113

(2011). Evidence that Macaluso sought out child pornography on the internet and

had a computer or hard drive containing child pornography is circumstantial

evidence that he knowingly received the images. See id.

                                          9
      Here, the district court properly denied Macaluso’s motions for judgments

of acquittal. From the evidence at trial, the jury reasonably could have concluded

that Macaluso owned all of the seized computers and media storage devices,

which the investigation showed to contain pornographic images of Jason and

images that Macaluso had sent to Jason. A computer seized from Macaluso’s

apartment was used to access instant messaging accounts associated with

Macaluso, Jason’s Facebook profile, and the website where Jason and Macaluso

first made contact. Moreover, a computer recovered from Macaluso’s bedroom

also was used to contact that victim. Other files stored on the

devices—photographs of Macaluso and Hobbs, a document authored by

Macaluso, and files associated with Macaluso’s business—further established that

Macaluso used the devices.

      Additionally, the evidence showed that pornographic images Zachary sent

to Macaluso were stored on the hard drives recovered from Macaluso’s residence.

In some of these images, Zachary held signs referencing “Michael.” The

government traced the screen name Macaluso used to the house where Macaluso

was residing, and a search revealed hard drives containing additional pornographic

images of Zachary and screenshots of a live video-chat between Macaluso and a

young man. Further, Macaluso’s computer, which was password-protected,

                                         10
contained two instant messaging accounts associated with Macaluso and evidence

that the user had contacted Zachary. This evidence was sufficient to show that

Macaluso made and distributed child pornography, and that he intended to do so,

as required to convict on Counts Two, Three, Six, and Seven.

      Moreover, the victims testified about their communications with Macaluso

and the jury had transcripts of at least one internet chat. This evidence permitted

the jury to conclude that Macaluso attempted to induce the victims to engage in

illegal sexual activity. The plain language of § 2422(b), as clarified by § 2427,

includes the production of child pornography, and the record does not support

Macaluso’s conclusory argument that the victims were somehow not involved in

the production of child pornography. Both victims testified that they, encouraged

or coerced by Macaluso, created and shared sexually explicit images of

themselves. Thus, the evidence was sufficient to convict Macaluso of Counts

One, Four, Five, and Eight.

             B. Admission of Images

      A district court’s evidentiary rulings are reviewed only for abuse of

discretion. United States v. Brannan, 562 F.3d 1300, 1306 (11th Cir. 2009). An

erroneous evidentiary ruling will not result in reversal where the error was

harmless, meaning it did not substantially influence the outcome of the trial and

                                         11
the jury’s verdict was supported by sufficient untainted evidence. United States v.

Dickerson, 248 F.3d 1036, 1048 (11th Cir. 2001).

      Evidence is relevant if it has “any tendency” to make the existence of a

material fact “more probable or less probable.” Fed. R. Evid. 401. The district

court may nonetheless exclude such evidence if its probative value is substantially

outweighed by the danger of unfair prejudice to the defendant. Fed. R. Evid. 403.

Rule 403 is an extraordinary remedy, which courts should employ “only sparingly

since it permits the trial court to exclude concededly probative evidence.” United

States v. Smith, 459 F.3d 1276, 1295 (11th Cir. 2006) (quotation omitted).

Accordingly, we view the disputed evidence “in a light most favorable to its

admission, maximizing its probative value and minimizing its undue prejudicial

impact.” Id. (quotation omitted). We have also recognized that, in the context of

child pornography cases, “the nature of the crime itself, and therefore the nature of

the evidence tending to prove it, is emotionally charged” and Rule 403 should not

be used to deprive the prosecution of “its most probative evidence.” Id. at 1296.

      Although the government generally may not offer evidence of the

defendant’s “other crimes, wrongs, or acts” to prove the defendant’s bad character

and to suggest that the defendant also committed the charged offense, such

evidence is admissible if it is relevant to other material issues in the case. Fed. R.

                                          12
Evid. 404(b); United States v. Calderon, 127 F.3d 1314, 1330 (11th Cir. 1997).

Specifically, the evidence must be (1) relevant to an issue other than the

defendant’s character, (2) sufficient to support a finding that the defendant

actually committed the extrinsic act, and (3) the probative value of the evidence

must not be substantially outweighed by unfair prejudice. Calderon, 127 F.3d at

1330.

        At issue is the court’s admission of Exhibit 126—the video chat between

Macaluso and an unidentified male. Viewing the evidence in the light most

favorable to its admission, the district court did not abuse its discretion in

admitting the exhibit. The evidence was probative of a disputed, material issue

and was not unfairly prejudicial. Exhibit 126 was perhaps the strongest and most

direct evidence that Macaluso created the images and, therefore, used the hard

drive. This evidence was particularly probative of usership because it showed

Macaluso engaged in live, one-on-one communication, making it unlikely that

another person controlled the images and transferred them to the hard drive.

        Additionally, the district court did not abuse its discretion in admitting the

other images of child pornography. The images were similar to the ones created

by the victims and thus tended to show that the user of the hard drives was the

same individual. Although such images are inherently inflammatory, we cannot

                                           13
conclude that the district court abused its discretion by admitting them.

             C. Prosecutorial Misconduct

      In opening statements at trial, the government stated that Macaluso was the

“common thread” linking images recovered from two residences and that when he

was arrested at his office, he had “yet again another computer . . . and lo and

behold similar images of child pornography.” Macaluso moved for a mistrial on

the ground that the images found at his arrest were not part of the charged

conduct. Alternatively, Macaluso requested the court advise the jury to disregard

the statement. The court agreed to so instruct the jury. Macaluso objected to this

resolution but also stated that he did not really want a mistrial.

      Generally, we review de novo a prosecutorial misconduct claim because it is

a mixed question of law and fact. United States v. Eckhardt, 466 F.3d 938, 947

(11th Cir. 2006). We, however, are precluded “from reviewing an issue raised on

appeal if it has been waived through the doctrine of invited error.” United States

v. Brannan, 562 F.3d 1300, 1306 (11th Cir. 2009). The doctrine of invited error

applies when a party induces or invites the district court into making an error,

particularly where it “is not clear that the defendant was prejudiced thereby.”




                                          14
United States v. Lewis, 524 F.2d 991, 992 (5th Cir. 1975).2

       Here, Macaluso invited any error, and thus we will not review his claim of

misconduct. Macaluso asked the court to either declare a mistrial or to instruct the

jury to disregard the prosecutor’s comment. The court chose to offer curative

instructions to the jury. Although Macaluso objected, the court had given him the

relief he requested. Moreover, when the court asked for any specific objection to

the instruction, Macaluso responded that he did not really want a mistrial.

              D. Authenticity of Evidence

       Prior to trial, Macaluso moved to exclude evidence of his alleged online

communications, arguing that the evidence had not been properly authenticated, as

he denied sending or receiving the messages. The district court denied the motion,

stating that testimony of another participant to the conversations would be

sufficient to authenticate the evidence.

       A district court’s authentication rulings are reviewed for abuse of discretion.

United States v. Siddiqui, 235 F.3d 1318, 1322 (11th Cir. 2000). Documents are

not admissible at trial unless and until they are properly authenticated by evidence

“sufficient to support a finding that the matter in question is what the proponent


       2
         Decisions handed down by the former Fifth Circuit before the close of business on
September 30, 1981 are binding precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661
F.2d 1206, 1207 (11th Cir. 1981) (en banc).

                                               15
claims.” Fed. R. Evid. 901(a). The proponent merely needs to present sufficient

evidence to make out a prima facie case that the proffered evidence is what it

purports to be. United States v. Caldwell, 776 F.2d 989, 1001-02 (11th Cir. 1985).

Authentication may be accomplished through the testimony of a witness with

knowledge. Fed. R. Evid. 901(b)(1); United States v. Lanzon, 639 F.3d 1293,

1301 (11th Cir.), cert. denied, 132 S.Ct. 333 (2011). We will not disturb a district

court’s determination that a particular piece of evidence has been appropriately

authenticated unless there is no competent evidence in the record to support it.

Caldwell, 776 F.2d at 1001.

      Here, the district court did not abuse its discretion by admitting the online

chats and emails because the victims’ testimony that the government’s exhibits

accurately portrayed their online communications with Macaluso was sufficient to

authenticate the evidence.

             E. Jury Instructions

      Ordinarily, we review de novo a challenge to a jury instruction. United

States v. Tokars, 95 F.3d 1520, 1531 (11th Cir. 1996). A district court commits

per se reversible error when the jury instruction alters the essential elements of the

offense contained in the indictment and broadens the possible bases for

conviction. United States v. Keller, 916 F.2d 628, 633-34 (11th Cir. 1990). Mere

                                          16
surplusage in an indictment, however, may be deleted without any legal error.

United States v. Ward, 486 F.3d 1212, 1227 (11th Cir. 2007).

      Where the defendant molds his defense to rebut the mens rea alleged in the

indictment, the district court may not instruct the jury on a lesser standard of

culpability. United States v. Cancelliere, 69 F.3d 1116, 1122 (11th Cir. 1995).

When the statute does not contain a knowledge requirement, its inclusion in the

indictment is mere surplusage. United States v. Deverso, 518 F.3d 1250, 1258 n.2

(11th Cir. 2008) (noting that “Congress defines the elements of an offense, not the

charging document” and referring to Cancelliere as an “exception to the general

rule regarding surplusage in the indictment”).

      Here, Macaluso challenges the instructions given for Counts One and Five.

But Macaluso invited any error. The court indicated that it would include

“knowingly” in either all or none of its instructions to the jury, and Macaluso

responded that he would “go without the knowingly.” In any event, jury

instructions for offenses under § 2251 need not include a “knowing” requirement,

as the statute does not contain the term “knowingly.” See 18 U.S.C. § 2251(a); see

also Eleventh Circuit Pattern Jury Instructions Criminal 82 (2010).

             F. Sentencing Enhancements

      We review a district court’s findings of fact under a clear error standard and

                                          17
its legal conclusions de novo. United States v. Jordi, 418 F.3d 1212, 1214 (11th

Cir. 2005). “For a factual finding to be clearly erroneous, this court, after

reviewing all of the evidence, must be left with a definite and firm conviction that

a mistake has been committed.” United States v. Rodriguez-Lopez, 363 F.3d 1134,

1137 (11th Cir. 2004) (quotation omitted).

                    1. § 2G2.1 enhancement

      The sentencing guidelines provide for an enhancement in the base offense

level if the offense involved images portraying “sadistic or masochistic conduct or

other depictions of violence.” U.S.S.G. § 2G2.1(b)(4). Sadistic conduct includes

the infliction of pain or cruelty. United States v. Hall, 312 F.3d 1250, 1261 n.13

(11th Cir. 2002) (interpreting U.S.S.G. § 2G2.2(b)(3) (2001), which contains the

same language as § 2G2.1(b)(4)). We presume that vaginal or anal penetration of

a young child is necessarily painful and, thus, is sadistic. Id. at 1262-63; United

States v. Caro, 309 F.3d 1348, 1352 (11th Cir. 2002).

      Here, the district court properly applied the § 2G2.1(b)(4) enhancement.

The evidence showed that the offense involved images portraying painful and

humiliating sex acts. Jason testified at trial that he took photographs of himself

performing sexual acts with a screwdriver and a candle. Likewise, Zachary took

videos and photographs of himself “penetrating his anus with a sex toy, and

                                          18
urinating on himself, and ejaculating on himself.” Additionally, Macaluso

stipulated at the sentencing hearing that the acts portrayed in the images were

painful for one victim. Thus, there is no merit to Macaluso’s argument that the

enhancement would not apply.

                    2. § 2G2.2 enhancement

      The guidelines also provide for an enhancement in the base offense level if

the offense involved distribution of child pornography to a minor “that was

intended to persuade, induce, entice, coerce the minor to engage in any illegal

activity” other than activity “covered under subdivision (E).” U.S.S.G.

§ 2G2.2(b)(2)(D). Subdivision (E) provides for a seven-level sentence increase if

the offense involved distribution to a minor “that was intended to persuade,

induce, entice, coerce, or facilitate the travel of, the minor to engage in prohibited

sexual conduct.” Id. at (b)(2)(E). This includes the production of child

pornography. U.S.S.G. § 2A3.1 comment. (n.1) (definition incorporated by

U.S.S.G. § 2G2.2 comment. (n.1)).

      Here, based on the plain and ordinary meaning of the guidelines language,

the district court properly applied the enhancement. Macaluso’s sentencing

objections were substantively the same as his motion at trial for judgments of

acquittal on Counts Four and Eight, for which the jury ultimately convicted him.

                                          19
The government presented evidence that Macaluso sent child pornography to the

victims, and requested (and later insisted) that the victims create and send

pornographic images of themselves in exchange. Additionally, Macaluso did not

object to the PSI’s statement that he sent child pornography in exchange for the

victims’ self-created images; thus, he has admitted this. See United States v.

Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005) (explaining that unobjected-to facts

in a PSI are deemed admitted). Moreover, Macaluso’s argument that the victims

were not involved in the production of child pornography is contrary to the

evidence in the record, including the testimony of both victims that they created

sexually explicit images of themselves at Macaluso’s behest.

      V. Conclusion

      Accordingly, we affirm Macaluso’s convictions and sentences.

      AFFIRMED.




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