             Case: 12-10864     Date Filed: 03/19/2013   Page: 1 of 14

                                                              [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 12-10864
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket No. 0:11-cr-60065-JAL-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

LEIGHTON MARTIN CURTIS,

                                                              Defendant-Appellant.

                           ________________________

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

                                 (March 19, 2013)

Before CARNES, BARKETT and ANDERSON, Circuit Judges.

PER CURIAM:

      Leighton Martin Curtis appeals his convictions and concurrent 360-month

sentences for sex trafficking of a minor, in violation of 18 U.S.C. §§ 2 and
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1591(a)(1) and (b)(2), and production of child pornography, in violation of

18 U.S.C. § 2251(a) and (e). The victim, a 15-year-old girl, had posted an

advertisement for her services online, and Curtis obtained her phone number from

the ad and contacted the victim to ask her to join his “family” as a prostitute. The

victim agreed and worked for Curtis as a prostitute for over one year until Curtis’s

arrest. Prior to trial, Curtis moved to suppress a videotape, which was recorded by

the victim on a computer web camera, which showed Curtis speaking on his

cellphone through a speaker phone to an unknown female while Curtis and the

victim were in the same hotel room. Curtis also moved the court to admit images

and videos depicting the victim’s sexual history under Federal Rule of Evidence

Rule 412. The district court denied both motions. During sentencing, Curtis

challenged the application of a two-level sentencing enhancement under U.S.S.G.

§ 2G2.1(b)(6)(B) for using a computer to solicit participation of a minor in

sexually explicit conduct, but the court found that the enhancement applied

because, when asked by the court whether the victim had testified that Curtis

initially had contacted her while she was online, Curtis replied: “I think that was,

paraphrasing, her testimony. Yes.”

      On appeal, Curtis first asserts that the court should have suppressed the

videotape under 18 U.S.C. § 2511 because the conversation represented an oral

communication, he did not give the victim permission to record him, and he


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believed the conversation was private. Second, Curtis challenges the sufficiency of

the evidence supporting each count of conviction, asserting that, as to the

child-sex-trafficking count, he did not know that the victim was a minor. As to the

child pornography count, he asserts that he did not know that the victim was a

minor and that there was no evidence that he forced, induced, enticed, or coerced

the victim into engaging in prostitution. Third, Curtis challenges the district

court’s ruling that he could not introduce sexually explicit images and videos of the

victim under Rule 412, as the evidence of her engaging in prostitution activity

while not with him allegedly showed that the victim was not under his control and

that he did not entice, force, or coerce her. Lastly, he asserts that his sentence is

procedurally unreasonable because the court should not have applied the

enhancement under § 2G2.1(b)(6)(B) and that his sentence is substantively

unreasonable.

      After thorough review of the record and the parties’ briefs, we affirm.

                                           I.

      We review the district court’s denial of a motion to suppress under a mixed

standard of review; the district court’s findings of fact are reviewed for clear error,

and the court’s application of law is reviewed de novo. United States v. McKinnon,

985 F.2d 525, 527 (11th Cir. 1993). In reviewing a motion to suppress, “all facts




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are construed in the light most favorable to the party prevailing in the district

court.” United States v. Ramirez, 476 F.3d 1231, 1235-36 (11th Cir. 2007).


      Title III of the Omnibus Crime Control and Safe Streets Act (“Title III”)

prohibits the unauthorized interception and disclosure of oral communications. 18

U.S.C. § 2511; McKinnon, 985 F.2d at 527. “Whenever any wire or oral

communication has been intercepted, no part of the contents of such

communication and no evidence derived therefrom may be received in evidence in

any trial . . . if the disclosure of that information would be in violation of this

chapter.” 18 U.S.C. § 2515.

      An oral communication is “any oral communication uttered by a person

exhibiting an expectation that such communication is not subject to interception

under circumstances justifying such expectation, but such term does not include

any electronic communication.” Id. § 2510(2). Based on this definition, we have

determined that the relevant question is whether the person making the

communication had a reasonable or justifiable expectation of privacy. McKinnon,

985 F.2d at 527. In McKinnon, law enforcement invited McKinnon and another

individual to sit in the back seat of the police car while the officers conducted a

consensual search of their vehicle. Id. at 526. Unknown to McKinnon, an officer

had surreptitiously activated a tape recorder in the police car, and while in the back

seat, McKinnon made an incriminating statement. Id. In determining whether the

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recording was improper, we noted that the inquiry under § 2511 was the same

inquiry used for invoking the Fourth Amendment. Id. at 527. The inquiry has two

prongs: (1) did the defendant’s conduct exhibit a subjective expectation of

privacy, and (2) is society willing to recognize the defendant’s subjective

expectation as reasonable. Id. We then held that, even though McKinnon did not

know he was being recorded, he did not have a reasonable expectation of privacy

while he was in the back seat of a police car. Id. at 527-28.

      Here, the district court did not err in denying Curtis’s motion to suppress.

First, Curtis’s lack of knowledge that he was being recorded does not affect the

analysis of whether he had a reasonable expectation of privacy. See id. Second,

Curtis’s assertion that he had a subjective expectation of privacy is not supported

by the record. Curtis used the speaker phone function of his cellphone and he did

not take any steps to shield his conversation from the victim. Not only did Curtis

acknowledge that the victim was only a few feet away while this call was taking

place, but the victim also testified that she clearly heard both sides of the telephone

conversation and that she and Curtis discussed the conversation afterwards.

      Accordingly, Curtis cannot establish that he had a subjective expectation of

privacy in the conversation. Furthermore, even assuming that Curtis did have a

subjective expectation of privacy, such an expectation was not reasonable. See id.

at 527. Thus, the district court did not err in denying Curtis’s motion to suppress.


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                                          II.

      “We review de novo whether sufficient evidence supports a conviction,

resolving all reasonable inferences in favor of the verdict.” United States v.

Farley, 607 F.3d 1294, 1333 (11th Cir. 2010). When considering a sufficiency

challenge, we must construe the evidence in the light most favorable to the

government and determine whether the jury could find the defendant guilty based

on the evidence. Id. Questions of credibility and the weight of the evidence are

left to the jury, so we should affirm when the record provides a reasonable basis

for the conviction. Id. We are bound by the jury’s credibility determinations

unless the testimony is “incredible as a matter of law.” United States v. Calderon,

127 F.3d 1314, 1325 (11th Cir. 1997) (citation omitted). Testimony is incredible

only if it relates to “facts that [the witness] physically could not have possibly

observed or events that could not have occurred under the laws of nature.” Id.

(alteration in original) (quotation omitted).

      To obtain a conviction under 18 U.S.C. § 1591(a)(1), the government first

must show that the defendant knowingly recruited, enticed, harbored, transported,

provided, obtained, or maintained a person by any means. 18 U.S.C. § 1591(a)(1).

The government then must prove that the defendant knew or was in reckless

disregard of the fact that (1) means of force, threats of force, fraud, or coercion

would be used to cause the person to engage in a commercial sex act, or (2) the


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person was under the age of 18 and would be made to engage in a commercial sex

act. Id. Lastly, the government must prove that the offense was in or it affected

interstate or foreign commerce. Id.

      Section 2251(a) makes it a crime for any person

      who employs, uses, persuades, induces, entices, or coerces any minor
      to engage in, . . . or who transports any minor in or affecting interstate
      or foreign commerce . . . with the intent that such minor engage in,
      any sexually explicit conduct for the purpose of producing any visual
      depiction of such conduct or for the purpose of transmitting a live
      visual depiction of such conduct . . . if such person knows or has
      reason to know that such visual depiction will be transported or
      transmitted using any means or facility of interstate or foreign
      commerce . . . .

Id. § 2251(a).

      “[A] party seeking to raise a claim or issue on appeal must plainly and

prominently so indicate. Otherwise, the issue—even if properly preserved at

trial—will be considered abandoned.” United States v. Jernigan, 341 F.3d 1273,

1283 n.8 (11th Cir. 2003).

      As to the conviction for sex trafficking of a minor, we conclude that the

evidence at trial was sufficient to support the jury’s finding that Curtis knew or

was in reckless disregard of the fact that the victim was a minor. The victim

testified, inter alia, that she informed Curtis that she was 15 years old, that she

showed Curtis her runaway poster which contained her date of birth and age, and

that Curtis told her not to post some of her pictures because she looked too young.


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Curtis also knew that the victim was placed in a juvenile facility, but even after her

release from this facility she continued to engage in prostitution for Curtis.

      As to the conviction for production of child pornography, knowledge of the

victim’s age is not an element of the offense. In addition, Curtis abandoned any

challenge to whether the government proved the element of § 2251(a) that his

actions were for the purpose of producing a visual depiction. See id. Moreover,

the evidence at trial was sufficient to show that Curtis “used” the victim to engage

in sexually explicit conduct and “transported” her in interstate commerce for the

same purpose.

                                          III.

      We review the district court’s application of Federal Rule of Evidence Rule

412 for abuse of discretion. United States v. Culver, 598 F.3d 740, 749 (11th Cir.

2010). Rule 412 provides that, in a criminal proceeding involving alleged sexual

misconduct, evidence is inadmissible when offered to prove that an alleged victim

engaged in other sexual behavior or to prove the victim’s sexual predisposition.

Fed. R. Evid. 412(a). One of the exceptions to this rule is when the exclusion of

such evidence “would violate the defendant’s constitutional rights.” Fed. R.

Evid. 412(b)(1)(C).

      In determining whether such evidence is admissible, we start with the

premise that a defendant has the right to introduce evidence in his defense. Culver,


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598 F.3d at 749. However, this right is not unlimited. Id. A court may impose

limits on evidence based on, inter alia, harassment, prejudice, or confusion of the

issues, or if the evidence is redundant or only marginally relevant. Id. We permit

such limitations unless they are “arbitrary or disproportionate to the purposes they

are designed to serve.” Id. (citation omitted).

      In Culver, the defendant was convicted of five counts of production of child

pornography under 18 U.S.C. § 2251(a). Id. at 744. The child pornography

involved five photographs and a videotape depicting a naked female. Id. at 745.

The issue at trial was whether these images depicted Culver’s 13-year-old

stepdaughter, K.W. Id. at 744-45. Culver sought to introduce evidence of K.W.’s

sexual history to rebut the government’s position that condoms and a broken

abstinence card, which were found in K.W.’s room, belonged to Culver. Id. at 749.

We held that the exclusion of K.W.’s sexual history was not arbitrary or

disproportionate. Id. The evidence would only confuse the jury and harass K.W.,

as the main issue was the identity of the female in the images. Id. In addition, the

district court had permitted Culver to cross-examine K.W. on matters of her prior

sexual history that were relevant to the charges. Id. at 750. We held that the jury

did not need to know the details of the conduct for which K.W. was disciplined in

order for Culver to be able to impeach K.W. Id. Based on these circumstances, we




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held that Culver failed to show that the court violated his constitutional rights by

applying Rule 412. Id.

      Here, Curtis sought to introduce sexually explicit videos and images of the

victim’s sexual history. The district court did not permit these videos and images

into evidence. Here, like in Culver, visual evidence of the victim’s sexual history

does not address any relevant issue in this case. Additionally, the victim testified

that she engaged in prostitution both before meeting Curtis and after Curtis’s

arrest, and, during cross-examination, Curtis was able to ask the victim questions

about her sexual history at these relevant times. Similar to Culver, the jury did not

need to see sexually explicit images and videos regarding these matters in order for

Curtis to impeach the victim.

      Rule 412 generally prohibits the admission of sexually explicit videos and

images of the victim, and Curtis has not established that any of the exceptions to

Rule 412 apply. Thus, the district court did not abuse its discretion in prohibiting

the introduction of such evidence.

                                         IV.

      We review the reasonableness of a sentence under a deferential abuse of

discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591

(2007). The party challenging the sentence bears the burden of proving the




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sentence is unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir.

2005).

      In determining reasonableness, we “evaluate whether the sentence imposed

by the district court fails to achieve the purposes of sentencing as stated in [18

U.S.C.] section 3553(a).” Id. In making this determination, we conduct a two-step

review, first ensuring that the sentence was procedurally reasonable and then

examining whether the sentence was substantively reasonable in light of the

totality of the circumstances and the § 3553(a) factors. Gall, 552 U.S. at 51, 128 S.

Ct. at 597. To be procedurally reasonable, the district court must properly

calculate the guideline range, treat the Guidelines as advisory, consider the

§ 3553(a) factors, not consider clearly erroneous facts, and adequately explain the

chosen sentence. Id.

      With regard to substantive reasonableness, the review “involves examining

the totality of the circumstances, including an inquiry into whether the statutory

factors in § 3553(a) support the sentence in question.” United States v. Gonzalez,

550 F.3d 1319, 1324 (11th Cir. 2008). “A district court abuses its discretion when

it (1) fails to afford consideration to relevant factors that were due significant

weight, (2) gives significant weight to an improper or irrelevant factor, or

(3) commits a clear error of judgment in considering the proper factors.” United

States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (quotation omitted). We


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reverse only if “left with the definite and firm conviction that the district court

committed a clear error of judgment in weighing the § 3553(a) factors by arriving

at a sentence that lies outside the range of reasonable sentences dictated by the

facts of the case.” United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008)

(citation omitted). Further, the weight to be given any particular factor is left to the

sound discretion of the district court absent a clear error of judgment. Id.

Although we do not automatically presume reasonableness for a sentence within

the guidelines range, we ordinarily expect such a sentence to be reasonable.

United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008).

      The § 3553(a) factors include the need to reflect the seriousness of the

offense, promote respect for the law, provide just punishment, deter criminal

conduct, and protect the public from the defendant’s future criminal conduct.

18 U.S.C. § 3553(a)(2). In imposing a particular sentence, the court must also

consider the nature and circumstances of the offense, the history and characteristics

of the defendant, the kinds of sentences available, the applicable guideline range,

the pertinent policy statements of the Sentencing Commission, the need to avoid

unwarranted sentencing disparities, and the need to provide restitution to victims.

18 U.S.C. § 3553(a)(1), (3)-(7).

      Under U.S.S.G. § 2G2.1(b)(6), a defendant receives a two-level

enhancement if he


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      for the purpose of producing sexually explicit material or for the
      purpose of transmitting such material live, the offense involved . . .
      the use of a computer or an interactive computer service to (i)
      persuade, induce, entice, coerce, or facilitate the travel of, a minor to
      engage in sexually explicit conduct, or to otherwise solicit
      participation by a minor in such conduct; or (ii) solicit participation
      with a minor in sexually explicit conduct.

U.S.S.G. § 2G2.1(b)(6)(B). The commentary states that this enhancement “is

intended to apply only to the use of a computer or an interactive computer service

to communicate directly with a minor” or someone with supervisory control of the

minor. U.S.S.G. § 2G2.1, comment. (n.4(B)).

      “[A] party may not challenge as error a ruling or other trial proceeding

invited by that party.” United States v. Love, 449 F.3d 1154, 1157 (11th Cir. 2006)

(citation omitted). “The doctrine of invited error is implicated when a party

induces or invites the district court into making an error.” Id. (quotation omitted).

“The doctrine stems from the common sense view that where a party invites the

trial court to commit error, he cannot later cry foul on appeal.” United States v.

Brannan, 562 F.3d 1300, 1306 (11th Cir. 2009).

      First, as to Curtis’s procedural reasonableness argument challenging the

application of the two-level enhancement under U.S.S.G. § 2G2.1(b)(6)(B), he

invited any alleged error by admitting that he contacted the victim while she was

online, which was a dispositive fact for the application of the enhancement.

Therefore, he may not challenge this alleged error on appeal. Second, Curtis’s


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360-month total sentence is substantively reasonable. The district court

specifically noted that Curtis had a minor criminal history, but it found his lack of

remorse and blame towards the victim outweighed that factor. At sentencing,

Curtis personally addressed the court and continued to deny that he knew the

victim’s age and continued to argue that the victim had manipulated him.

Additionally, the victim worked for Curtis for over one year, working four to five

times per week with upwards of five to seven meetings per day with “dates.”

Based on these facts and others presented at trial, the district court did not abuse its

discretion in determining that the seriousness of the offense, Curtis’s lack of

remorse, the need for deterrence, and the need to protect the public outweighed

Curtis’s minor criminal history.

      For the foregoing reasons, we affirm.

      AFFIRMED.




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