United States v. Herbert Johnson ( 2019 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 19a0264n.06
No. 18-1408
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
May 23, 2019
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
HERBERT BERNARD JOHNSON, ) DISTRICT OF MICHIGAN
)
Defendant-Appellant. ) OPINION
)
BEFORE: NORRIS, DAUGHTREY, and LARSEN, Circuit Judges.
ALAN E. NORRIS, Circuit Judge. Defendant Herbert Bernard Johnson was convicted
following a jury trial of attempted coercion and enticement of a minor, travel with intent to engage
in illicit sexual activity, and possession of child pornography. Johnson appeals, alleging that the
evidence introduced by the government at trial was not sufficient to support conviction on any of
the charges. For the reasons that follow, we affirm.
I.
On August 25, 2015, law enforcement discovered an advertisement posted on Craigslist
for the Detroit, Michigan, area seeking a young male, nineteen or younger, to be on the receiving
end of very aggressive sexual acts. In addition to the explicit description of what was sought, the
advertisement contained pornographic images of young males portraying sexual acts similar to
those described. That same day, FBI Agent Ray Nichols responded to the advertisement posing as
a fifteen-year-old boy named Jason. Defendant later admitted to law enforcement that he created
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and posted the advertisement and engaged in the subsequent email and text conversations with
Jason.
After Jason emailed defendant in response to the advertisement, defendant confirmed that
the advertisement was real and asked Jason to describe himself. Jason told defendant he was fifteen
years old, described his height and weight, and explained that he had never been with a man
sexually but was curious about it. Defendant asked for a picture of Jason’s body and inquired
whether Jason was able to travel. Jason asked defendant to send a picture first, and in response
defendant sent two pictures that he claimed were of him: one picture was of a nude torso from
approximately the chin to the thighs, and the other was a close-up of an erect adult penis. In
response, Jason sent a torso picture of a youthful looking male FBI agent in his underwear.
Conversations between defendant and Jason continued for a couple days, but then paused for a few
days after defendant told Jason that he would be unavailable for a while.
On September 1st, defendant emailed Jason asking him whether he could travel to Troy,
Michigan, and asking Jason for more details about what sort of experiences he was hoping to have.
Jason responded that he would not have a car until he turned sixteen, but that he could probably
get a ride somewhere. He also explained that he was looking to experiment sexually with a man,
including the activities described in defendant’s Craigslist advertisement. Jason stated that he had
little sexual experience and needed someone to take the lead. On September 4th, defendant emailed
Jason about where he lived and suggested they could meet to talk about Jason’s expectations for
engaging in sexual activity with defendant, but defendant did not confirm that he was willing to
engage in sexual activity with Jason.
Defendant and Jason switched from communicating by email to using text messages on
September 5th, and defendant flew into Michigan on September 6th. Jason and defendant texted
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for almost twelve hours on September 8th. Towards the end of the day, defendant asked Jason
about his sexual experience with girls, to which Jason replied that he had been with a girl only
once, and since then he has been more attracted to men.
The two arranged to meet at a public park the evening of September 9th. Jason said he
would ride his bicycle to the park and meet defendant there. Defendant asked Jason what they
would do with his bicycle, but Jason said he could lock it up at the park or, if he had enough
advance notice of the meeting time, he could walk to the park instead.
To prepare for the meeting, Agent Nichols assembled approximately fifteen law
enforcement officers who were members of the Southeast Michigan Trafficking Exploitation
Crimes Task Force. Some officers were tasked with surveillance, some were assigned to the arrest
team, and one male officer with a youthful appearance agreed to pretend to be Jason in-person.
When defendant arrived at the park, he pulled into the parking lot but not a parking space.
Jason texted defendant and asked him to flash his headlights to identify himself, which he did. The
officer posing as in-person Jason walked up to the passenger side of defendant’s car. All the while,
Agent Nichols was texting with defendant and communicating with the officer engaging defendant
as Jason. The officer posing as Jason confirmed with defendant that he was “the guy from
Craigslist.” Defendant told Jason to get in the car, but instead the officer signaled for law
enforcement to move in and arrest defendant. As several officers ran toward defendant’s car, he
attempted to flee the parking lot by driving over the curb, but police blocked his path and defendant
was arrested.
Defendant later told authorities that he lives in Colorado but frequently travels for work,
including to the Detroit metropolitan area. Law enforcement officers were able to determine that
the Craigslist post Nichols responded to had been renewed several times, and defendant had made
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136 posts on Craigslist from November 29, 2014, to August 25, 2015, including some identical to
the post described above and others with similar sexually oriented objectives. Defendant admitted
to making the Craigslist posts to find sexual partners, and he admitted communicating with Jason
and seeking to meet him in the park, but defendant denied that his intention was to have sex with
Jason.
Law enforcement searched defendant’s hotel room, which revealed a small video recorder,
Viagra pills, condoms, a bottle of personal lubricant commonly used for sex, a pair of underwear
suitable for a young girl, a box of latex gloves, enemas, and a black mask. Agents also seized a
laptop computer, a portable hard drive, and a thumb drive. The video recorder contained footage
that appeared to be defendant testing different configurations for the camera, so it would record a
good video but be hidden from view.
The laptop computer had a “virtual machine” installed, which means a specialized piece of
software that allows a user of the physical computer to install and operate a software version of
another, wholly separate computer. Officers found thirty-six images of verified child pornography
on defendant’s virtual machine, including two images with an infant or toddler victim and twenty-
nine others with pre-pubescent victims. The images were cached thumbnail-sized images that
appeared to be remnants of video files that were stored on an encrypted external drive plugged into
the laptop to view the videos on the virtual machine. A search of defendant’s residence in Colorado
turned up approximately thirty additional pieces of additional electronic media, including multiple
hard drives, computers, laptops, and servers. All of these items, as well as the portable hard drive
and thumb drive recovered from defendant’s hotel room, were protected by sophisticated
encryption. Law enforcement was unable to decrypt any of the media for analysis.
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The government charged defendant and his trial lasted four days. The jury returned a
verdict of guilty on Count 1: Attempted Coercion and Enticement of a Minor, in violation of 18
U.S.C. § 2422(b); Count 2: Travel With Intent to Engage in Illicit Sexual Activity, in violation of
18 U.S.C. § 2423(b); and Count 4: Possession of Child Pornography, in violation of 18 U.S.C.
§ 2252A(a)(5)(B) and (b)(2). The jury acquitted defendant on Count 3: Transportation of Child
Pornography, in violation of 18 U.S.C. § 2252A(a)(1). At the end of the trial, defendant moved the
district court for a judgment of acquittal under Federal Rule of Criminal Procedure 29, which the
district court denied. The sentencing guidelines’ suggested imprisonment range was 121 to 151
months; the district court sentenced defendant to 121 months. Defendant filed a timely appeal
claiming that the evidence was insufficient to support any of his three convictions.
II.
We review de novo a district court’s denial of a motion for a judgment of acquittal
notwithstanding the verdict. United States v. Vichitvongsa, 819 F.3d 260, 270 (6th Cir. 2016).
When, as here, the appeal is based on insufficiency of the evidence, the defendant “bears a very
heavy burden.” United States v. Callahan, 801 F.3d 606, 616 (6th Cir. 2015). The relevant question
before us is “whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). “In so doing, we draw ‘all reasonable
inferences in support of the jury’s verdict and will reverse a judgment for insufficient evidence
only if the judgment is not supported by substantial and competent evidence upon the record as a
whole.’” Vichitvongsa, 819 F.3d at 270 (quoting United States v. Stewart, 729 F.3d 517, 526 (6th
Cir. 2013)). “Circumstantial evidence alone is sufficient to sustain a conviction and such evidence
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need not remove every reasonable hypothesis except that of guilt.” United States v. Lowe, 795 F.3d
519, 522-23 (6th Cir. 2015) (quotation omitted).
A.
There is significant overlap in the evidence pertinent to defendant’s first two convictions—
attempted coercion and enticement of a minor, and travel with intent to engage in illicit sexual
activity. Therefore, we will review defendant’s appeal of those convictions together.
Because Jason was actually FBI Agent Nichols, defendant was charged with attempted
coercion and enticement of a minor. “Criminal attempt requires that the defendant intended to
commit the crime and that the defendant took a substantial step towards committing the crime,
beyond mere preparation.” United States v. Evans, 699 F.3d 858, 867 (6th Cir. 2012) (citation
omitted). The elements of coercion and enticement of a minor are that (1) defendant used a facility
or means of interstate commerce in an attempt to knowingly persuade, induce, entice, or coerce an
individual under the age of eighteen to engage in sexual activity; (2) defendant believed the person
was under eighteen; and (3) that if sexual activity had occurred, the defendant could have been
charged with a criminal offense under state law. 18 U.S.C. § 2422(b); United States v. Roman,
795 F.3d 511, 515-16 (6th Cir. 2015) (citing United States v. Hart, 635 F.3d 850, 855 (6th Cir.
2011)). Coercion and enticement of a minor “does not require proof of a specific intent to actually
engage in sexual activity” and instead was “designed to protect children from the act of solicitation
itself.” United States v. Hughes, 632 F.3d 956, 961 (6th Cir. 2011) (citation omitted).
On the other hand, a conviction for traveling with intent to engage in illicit sexual conduct
requires that the government prove that (1) defendant traveled in interstate commerce, and
(2) defendant did so with the intent to engage in illicit sexual conduct. See 18 U.S.C. § 2423(b);
United States v. Lay, 583 F.3d 436, 440 (6th Cir. 2009). Illicit sexual conduct need not be
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defendant’s only purpose for travel, or even his dominant purpose. See United States v. Harris,
480 F.2d 601, 602 (6th Cir. 1973); United States v. Goodwin, 719 F.3d 857, 862 (8th Cir. 2013)
(“The illicit behavior must be one of the purposes motivating the interstate transportation, but need
not be the dominant purpose.”) (quotation and alterations omitted).
Defendant does not dispute that he posted the Craigslist advertisement in the Detroit area
and traveled there after establishing contact with Jason. The record suggests that defendant had
work obligations in Detroit, so meeting Jason likely was not his sole, or perhaps even dominant
purpose, but it was a purpose. If defendant intended to have sex with fifteen-year-old Jason, which
defendant disputes, it would undoubtedly be illicit sexual activity.
The gist of defendant’s appeal on both counts is that he was not trying to entice Jason into
sexual conduct, and in fact had no intent to engage in any sexual activity with Jason. More
specifically, defendant asserts that the government did not introduce enough evidence at trial so
that a rational juror could be convinced of his guilt beyond a reasonable doubt.
Defendant points out a number of alleged weaknesses in the government’s case. For
instance, while defendant readily admits that his Craigslist advertisement was posted for the
purpose of finding a sexual partner, he points out that the Craigslist terms of use require users to
be at least eighteen, and his post sought sexual encounters with young looking men aged nineteen
or younger (which of course encompasses those aged eighteen and nineteen, who are legally
capable of consent).
Defendant also points out that in none of the emails or text messages exchanged with Jason
did defendant explicitly agree to or request any specific sexual activity with Jason. Defendant
emailed Jason and asked what Jason hoped to experience. Jason responded that he was interested
in experiencing sex with a man, including those sexual experiences described by defendant in his
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Craigslist advertisement. Defendant asked where Jason lived and suggested they meet to talk about
Jason’s expectations, but offered “no promises” about following through.
Despite the lack of explicit references to sex, all of the interactions between defendant and
Jason must be viewed in the context of defendant’s sexually graphic and explicit Craigslist
advertisement that marked the beginning of their relationship. Defendant admits that he designed
and posted his Craigslist advertisement to find sexual partners. The advertisement purported to be
a “daddy looking for a smooth y[ou]ng son” and referenced “looking for a real situation” and
“pervy y[ou]ng incest taboo all good.” Agent Nichols testified at trial that in his experience those
are code words often used by those with a sexual interest in children. The advertisement included
several pornographic images which appeared to portray small, young males engaged in graphic
sex acts with older, larger men.
Early in their first conversation, Jason told defendant that he was fifteen years old.
Defendant’s almost immediate reaction was to ask for a picture of Jason’s body and to send him
two nude pictures of an adult male—a torso picture and a close-up picture of an erect penis.
Defendant claimed he was the man in both pictures. After Jason indicated that he was interested
in experimenting sexually with defendant, defendant sought to meet with Jason and to keep it
secret from Jason’s mother. In conversation, while trying to set up a meeting, defendant asked
Jason about his “experience with girls.” Jason and defendant settled on a plan whereby Jason would
lie to his mother and make his way to a public park where defendant would pick him up.
Defendant claims that the evidence at most suggests that he intended to have a conversation
with Jason about his sexual experiences at the public park. But other parts of the record support
the government’s contention that defendant had plans to pick Jason up and take him back to
defendant’s hotel room for sex. First, defendant expressed concern to Jason about what they will
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do with his bicycle if he rode it to the park, supporting the idea that defendant had every intention
to pick Jason up at the park and go elsewhere, not stay at the park and talk. Next, when defendant
arrived at the park he pulled into the parking lot and left the car running, instead of pulling into a
parking spot and turning off the car. When Jason asked, defendant identified himself by flashing
his lights. A local police officer acting as Jason approached the car, and asked defendant if he was
“the Craigslist guy.” Defendant answered yes and told “Jason” to “get in the car.” Once law
enforcement officers identified themselves and moved in, defendant attempted to flee but officers
took him into custody.
Searching defendant’s hotel room, officers discovered his work laptop with sophisticated
software installed that allowed a virtual machine—essentially a software version of a second
computer—to run within his laptop. The password for the virtual machine was “sexyperv.” Along
with the laptop, officers seized a mini HD video recorder with tripod, an encrypted portable hard
drive, and an encrypted flash drive. Review of the video camera revealed footage of defendant
trying to set up the camera for recording so that it was hidden from view. In addition to the
electronics gear, agents found Viagra pills, condoms, a bottle of personal lubricant designed for
sexual activity, a pair of little girls’ underwear, a box of latex gloves, enemas, and a black mask.
At defendant’s residence, law enforcement seized approximately thirty additional media items,
including multiple hard drives, computers, laptops, and two servers, all of which were encrypted.
Undoubtedly, the government’s case against defendant would have been stronger had
defendant made more explicit sexual requests or overtures in his email and text conversations with
Jason. The government argued that defendant’s careful wording in his email and text
communications, coupled with the sophisticated virtual machine and encryption technology,
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suggested that defendant knew his conduct was illegal and sought to keep it hidden from law
enforcement.
After a careful review of the entire record, we conclude that there was substantial and
competent evidence of defendant’s guilt and that evidence was more than sufficient for a rational
juror to reach a guilty verdict on both counts. The jury did so here, and we affirm the district court’s
denial of defendant’s motion for a judgment of acquittal on these counts.
B.
After his arrest, law enforcement interviewed defendant and, among other things, asked
him about child pornography. Defendant stated that he had never intentionally sought child
pornography, but he allowed that there might be some either in his email or on his computer.
Defendant’s hotel room contained a portable hard drive and thumb drive, both encrypted in a way
that prevented law enforcement from analyzing them. A search of his residence revealed several
other forms of media, again all encrypted in a way that prevented law enforcement analysis.
However, when law enforcement searched the virtual machine installed on his work laptop, agents
found thirty-six images of verified child pornography, including two images that contained an
infant or toddler victim, and twenty-nine images that contained pre-pubescent victims. These were
not full-sized images, but rather thumbnail images that were saved to the system’s cache folder
when someone using the computer viewed video files of child pornography from an encrypted
external drive.
The government’s theory is that defendant knowingly possessed child pornography on the
encrypted external media and plugged the external devices into the computer to view it. The
thumbnail files show that they were created on the system the same day defendant arrived in
Detroit and checked into his hotel. Despite this plausible theory, the burden rests with the
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government to show that (1) defendant knowingly possessed material that contained an image of
child pornography; (2) defendant knew the material contained child pornography; and (3) the
image of child pornography had been shipped or transported using any means or facility of
interstate or foreign commerce. 18 U.S.C. § 2252A(a)(5)(B); see also United States v. Kniffley,
729 F. App’x 406, 410 (6th Cir. 2018).
When images are only recovered from a computer system’s cache, rather than organized
on a hard drive or other storage media in a more intentional manner, it is sometimes more difficult
for the government to show that a defendant knowingly possessed the child pornography. See, e.g.,
United States v. Kuchinski, 469 F.3d 853, 863 (9th Cir. 2006) (holding that sentencing
enhancement was erroneous without proof defendant knew about or controlled child pornography
found in internet cache). Nevertheless, with sufficient proof of knowledge, cached thumbnail
images can be the basis of conviction. See United States v. Huyck, 849 F.3d 432, 443 (8th Cir.
2017) (upholding conviction based on cached thumbnails present on an external hard drive). And
circumstantial evidence of knowledge may be sufficient to support a jury’s guilty verdict. Id.; see
also United States v. Breton, 740 F.3d 1, 17 (1st Cir. 2014).
Here, defendant admitted that the laptop was his work computer, and that he installed and
password protected the software-based virtual machine on the laptop. The government asserts that
the internet search history on the virtual machine included many search terms that are indicative
of someone with a sexual interest in children. When “[s]earch terms specific to child pornography”
are found on a computer, it is persuasive circumstantial evidence that the user “knowingly
possessed child pornography.” United States v. Gray, 641 F. App’x 462, 468 (6th Cir. 2016).
In addition to the search terms and defendant’s exclusive control of the laptop, the jury was
free to consider the surrounding evidence of defendant’s sexual interest in children: the Craigslist
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advertisement, the presence of myriad encrypted media devices, the items in his hotel room
including little girls’ underwear, and defendant’s own statement to law enforcement that they
might find child pornography when they searched his email or computer.
In this case, defendant offers no alternative explanation for his possession of the
pornographic images of children, and the evidence supporting defendant’s guilt is copious. A
rational juror could conclude from the evidence that defendant was guilty of possession of child
pornography. Therefore, we affirm the district court’s denial of defendant’s motion for judgment
of acquittal on the charge of possession of child pornography.
III.
The judgment of the district court is affirmed.
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