USA v. Randall Wolford

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USA v. Randall Wolford

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Case: 09-10454

Document: 00511174478

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Date Filed: 07/15/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
July 15, 2010 N o . 09-10454 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, Plaintiff­Appellee v. R A N D A L L HOWARD WOLFORD, Defendant­Appellant

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 4:08-CR-165-1

B e fo r e JONES, Chief Judge, and KING and HAYNES, Circuit Judges. P E R CURIAM:* O v e r the course of several weeks, Randall Howard Wolford chatted online w it h "Jen," who identified herself as a thirteen-year-old girl, and he ultimately a t t e m p t e d to meet her in person. But "Jen" was actually an undercover police o ffic e r . Wolford was arrested, convicted by a jury of one count of attempting to e n tic e 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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No. 09-10454 m o n th s in prison. Before this court, Wolford challenges his conviction and s e n te n c e . We affirm as to both. I. BACKGROUND O n March 20, 2008, Wolford entered an online chat room named " R o m a n c e " and struck up a conversation with a user who identified herself as " J e n ." According to her profile, Jen lived near Wolford and was twelve-years-old, t h o u g h she informed Wolford that she had recently turned thirteen. In fact, Jen w a s not thirteen or even female. "Jennifer Easley" was the online, undercover id e n tity of Sergeant Tom Milner of the Sansom Park Police Department in the D a lla s /F o r t Worth area. During the following weeks, Wolford and Jen chatted a number of times, w it h each conversation quickly veering toward the sexually explicit, usually at W o lfo r d 's instigation. Wolford described the sexual acts that he wanted to p e r fo r m on Jen, sent her pornographic images, requested that she send him n u d e photographs of herself, and directed her to a live video stream where he c o u ld be seen in sexual conduct. He stated repeatedly that he wished to meet h e r in person, but also expressed concern that she was an online vigilante or law e n fo r c e m e n t officer, rather than whom she claimed to be. N o n e t h e le s s , Wolford made arrangements for a rendezvous at a local M c D o n a ld 's on April 30, 2008. He arrived, greeted a nineteen-year-old police d e p a r t m e n t 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, W o lfo r d fled. He was stopped a few miles from the restaurant and arrested. Wolford was indicted on one count of attempting to persuade, induce, e n tic e , or coerce a minor to engage in criminal sexual activity, in violation of 1 8 U.S.C. § 2422(b). He pled not guilty. At trial, he put forward only one d e fe n s e : that he believed Jen was an adult pretending to be a child--a type of r o le p la y in g in which he had previously engaged, according to his sole witness. 2

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No. 09-10454 A fte r a one-day trial, the jury returned a verdict against Wolford. The district c o u r t departed upward and sentenced him to 292 months in prison. II. DISCUSSION O n appeal, Wolford argues that the district court erred in instructing the ju r y , allowing the admission of testimonial evidence without cross-examination, a llo w in g the admission of evidence that was unduly prejudicial, calculating his g u i d e l in e sentencing range, and imposing a substantively unreasonable s e n te n c e .1 We address each in turn. A . Jury Instructions W o lfo r d asserts that the district court erred by refusing to instruct the jury t h a t if Wolford believed he was communicating over the Internet with an adult, h is speech was protected by the First Amendment. This court reviews a trial court's "refusal to include a requested jury in s t r u c t io n 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 i m p a ir s the defendant's ability to effectively present a given defense. United S ta te s v. Loe, 248 F.3d 449, 459 (5th Cir. 2001). The First Amendment is not a defense to the charge of attempting to e n tic e a child to engage in illegal sexual activity under 18 U.S.C. § 2422 because " [t ]h e r e is no First Amendment right to persuade minors to engage in illegal sex a c t s ." 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 d e fe n d a n t importuned a person "who he believed to be under the age of 18 years"

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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No. 09-10454 (a s the jury instruction, in fact, put it), ensures that conviction will not lie where s p e e c h is within the bounds of the First Amendment's protections. Wolford was n o t impaired from presenting his "roleplaying" defense, and had he convinced t h e jury on that point, his speech would not have been subject to punishment u n d e r § 2422. We also reject Wolford's contention that, in the absence of his p r o p o s e d First Amendment instruction, the sheer offensiveness of his speech m ig h t have led the jury to convict even had it found that he believed Jen to be a n adult. A jury is presumed to follow the court's instructions, United States v. B e r n a r d , 299 F.3d 467, 476 (5th Cir. 2002), and the instructions here were p e r fe c t ly compatible with Wolford's defense. The district court's instruction of the jury was entirely proper. B . Confrontation Clause W o lfo r d 's run-in with Sergeant Milner was apparently not the first time t h a t 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 s h o w "Dateline," which called the segment "To Catch a Predator." The show's m o d u s 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 W o lfo r d arrived at the house, he was confronted by a reporter, Chris Hansen, a n d questioned about his intentions. Wolford argues that because Hansen was n o t a live trial witness, the admission of portions of the interview transcript v io la t e d his rights under the Confrontation Clause of the Sixth Amendment. Alleged violations of the Confrontation Clause are "reviewed de novo, but are s u b je c t to a harmless error analysis." United States v. Bell, 367 F.3d 452, 465 (5 t h Cir.2004). T h e Confrontation Clause generally prohibits the admission of an out-ofc o u r t "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 4

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No. 09-10454 o n ly when "the out-of-court statement is used to prove the truth of the matter a s s e r t e d ." Jones v. Cain, 600 F.3d 527, 536 (5th Cir. 2010). W o lfo r d 's Confrontation Clause argument fails because Hansen's s t a t e m e n t s do not speak to the truth of any matter. At the request of Wolford's c o u n s e l, the district court redacted statements by Hansen concerning the b e h a v io r of typical child predators, the substance of Texas law, the legality of W o lfo r d 's conduct, and Hansen's opinion of Wolford's conduct. What remained w e r e questions that give context to Wolford's statements and statements of fact e x p lic it ly adopted by Wolford, such as the contents of messages that he had sent t o the online decoy. Because none of Hansen's statements was a "declaration or a ffir m a t io n made for the purpose of establishing or proving some fact," C r a w fo r d , 541 U.S. at 51, admission of the transcript did not violate the C o n fr o n t a t io n Clause. C . Evidentiary Challenges W o lfo r d next argues that the district court erred in admitting into e v id e n c e (a) transcripts of online conversations with anonymous third parties t h a t were found on his computer; (b) pornographic images of children that were a ls o found on his computer; (c) a list of pornographic websites that had been b o o k m a r k e d on his computer; and (d) still images captured from pornographic v id e o s that he sent to Jen. T h e chat transcripts and photos of child pornography, Wolford argues, are e v id e n c e of prior acts that is relevant only to his character and are inadmissible u n d e r Rule 404(b). Rule 404(b) requires the exclusion of evidence of crimes and a c t s 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

a d m i s s i o n of such evidence to show "proof of motive, opportunity, intent, p r e p a r a t io n , 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 5

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No. 09-10454 d e fe n d a n t 's character" and it "possess[es] probative value that is not s u b s t a n t ia lly outweighed by its undue prejudice and [meets] the other r e q u ir e m e n t s of rule 403." United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1 9 7 8 ) (en banc). The transcripts speak to motive and intent. They contain statements from W o lfo r d expressing an interest in having sex with minor children and his a s s e r t io n that he had previously raped a minor. These statements cast doubt on W o lfo r d 's assertion that, when chatting with Jen, he believed he was roleplaying w it h another adult. Further, this "roleplaying" defense invested the chat By comparison, the risk of unfair

t r a n s c r ip t s with great probative value.

p r e ju d i c e was minimal, given the already-graphic nature of the case and the d is t r ic t court's limiting instruction to the jury. The district court also determined that the pornographic images were e x t r e m e ly probative to Wolford's motive and intent. They served to rebut

W o lfo r d 's claim that he did not actually believe that the people he spoke with w e r e underage and to show that Wolford had the motive and intent to entice a m in o r to engage in illegal sex acts. Though both the transcripts and images were undoubtedly prejudicial to W o lfo r d 's defense, under this court's precedent, we cannot say that their a d m is s io n into evidence was an error or an abuse of discretion under Rule 403 o r 404(b). See United States v. Layne, 43 F.3d 127, 134 (5th Cir. 1995) (child p o r n o g r a p h y "more probative than prejudicial" when employed to demonstrate s c ie n te r ). Finally, Wolford argues that the district court erred in admitting into e v id e n c e his bookmark list and still images captured from a video, to which W o lfo r d 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 4 0 3 and 404(b), he asserts, this evidence was unfairly prejudicial. The evidence, 6

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No. 09-10454 h o w e v e r , was central to the crime being charged--enticement of a minor to e n g a g e in unlawful sexual activity--and was therefore central to the g o v e r n m e n t 's overall approach to the case. See United States v. Caldwell,

5 8 6 F.3d 338, 343 (5th Cir. 2009). Despite the prejudice, this evidence speaks w it h great probity to Wolford's identity, motive and intent and, even more so, to h is enticement, the actus reus of the offense. The district court did not err. D . The District Court's Upward Departure at Sentencing W o lfo r d asserts that the district court erred by finding that an upward d e p a r t u r e was justified under U.S.S.G. §§ 5K2.21 and 4A1.3(a)(1). In general, t h is 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 b y concluding that an upward departure for his uncharged possession of child p o r n o g r a p h y was authorized under U.S.S.G. § 5K2.21 because he did not enter in t o a plea agreement. This court reviews his claim for plain error. United S ta te s v. Reyna, 358 F.3d 344, 30 (5th Cir. 2004). Section 5K2.21 provides: T h e court may depart upward to reflect the actual seriousness of the o ffe n s e based on conduct (1) underlying a charge dismissed as part o f a plea agreement in the case, or underlying a potential charge not p u r s u e d in the case as part of a plea agreement or for any other r e a s o n ; and (2) that did not enter into the determination of the a p p lic a b le guideline range. T h e plain language of § 5K2.21 rebuts Wolford's contention: it is enough that the d e p a r t u r e be premised on conduct "underlying a potential charge not pursued in the case . . . for any other reason." The provision does not require a plea a g r e e m e n t.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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No. 09-10454 W o lfo r d next argues that the district court erred by applying an upward d e p a r t u r e , under U.S.S.G. § 4A1.3, for under-represented criminal history b e c a u s e there was insufficient evidence to support the court's factual findings. T h e sentencing court "is entitled to find by a preponderance of the e v id e n c e all the facts relevant to the determination of a Guideline sentencing r a n g e ." United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2007). Here, the d is t r ic t court found by a preponderance of the evidence that Wolford had c o m m it t e d two rapes of adult women and that he had admitted to the prior o ffe n s e of attempted enticement of a minor during the Dateline NBC encounter. These findings were well supported by a variety of reliable information, in c lu d in g police reports, victim statements, emails sent by the defendant, and t h e aforementioned Dateline transcript. T h e upward departure was no abuse of discretion. E. Substantive Unreasonableness F in a lly , Wolford challenges his 292-month sentence as excessive and s u b s t a n t iv e ly unreasonable. "An upward departure by a district court is not an abuse of discretion if t h e 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. Z u n ig a -P e r a lta , 442 F.3d 345, 347 (5th Cir. 2006) (internal quotation marks and c it a t io n omitted). At sentencing, the district court commented on Wolford's prior criminal a c t iv it y , including the rapes and the admitted offense of attempted enticement o f 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 t h e Guideline range pursuant to § 4A1.3(a)(1) because the defendant's criminal

§ 5K2.21.

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No. 09-10454 h is t o r y category substantially under-represents the seriousness of his criminal h is t o r y and the likelihood that Wolford will commit other sex-related crimes in t h e future. The district court concluded at sentencing that an upward departure w o u ld advance the objectives contained in § 3553(a)(2) and was justified on the fa c t s of the case. Given the district court's extensive analysis and the clear factual basis for t h e departure, the district court did not abuse its discretion in departing from t h e Guidelines. See Zuniga-Peralta, 442 F.3d at 348. I I I . CONCLUSION F o r the reasons discussed above, the conviction and sentence of Randall H o w a r d Wolford are AFFIRMED.

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