United States v. Joshua Herrera

USCA11 Case: 23-13706    Document: 47-1      Date Filed: 01/07/2025   Page: 1 of 17




                                                    [DO NOT PUBLISH]
                                    In the
                 United States Court of Appeals
                         For the Eleventh Circuit

                           ____________________

                                 No. 23-13706
                           ____________________

        UNITED STATES OF AMERICA,
                                                       Plaintiff-Appellee,
        versus
        JOSHUA HERRERA,
        a.k.a. Joshua Reuben Herrera,


                                                    Defendant-Appellant.


                           ____________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                  D.C. Docket No. 1:20-cr-00079-SDG-RDC-1
                           ____________________
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        2                       Opinion of the Court                  23-13706

        Before ROSENBAUM, LAGOA, and WILSON, Circuit Judges.
        PER CURIAM:
               A jury convicted Joshua Herrera of one count of attempting
        to entice a minor to engage in sexual activity in violation of 18
        U.S.C. § 2422(b). As part of his defense, Herrera tried to introduce
        expert testimony from a psychologist that he was not sexually at-
        tracted to children. The district court ruled that testimony inad-
        missible in part under Federal Rule of Evidence 704(b). That rule
        prohibits experts in a criminal trial from opining on whether the
        defendant had the required mental state to be convicted as charged.
        FED. R. EVID. 704(b).
                Herrera now appeals his conviction, arguing the district
        court abused its discretion by restricting the testimony. But in
        United States v. Gillis, we held that a district court did not abuse its
        discretion when it barred nearly identical testimony under the
        same rule. 938 F.3d 1181, 1195 (11th Cir. 2019). So we affirm Her-
        rera’s conviction.
                                I.      BACKGROUND

                                     A. Herrera’s Conduct

               In November 2019, as part of an undercover operation
        against child sex crimes, the Federal Bureau of Investigation (“FBI”)
        created an ad on FetLife.com. FetLife.com is a website that hosts
        classified ads for people looking to act on sexual fetishes. Posting
        under the username “daughterlover_11,” an agent posed as a
        “Mom . . . looking for like minded no limits perv.” Two days after
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        23-13706               Opinion of the Court                        3

        posting, an account, later identified as belonging to Herrera, re-
        sponded.
               In their initial exchange, the undercover agent explained that
        she was “looking for something taboo with [her] daughter” and
        asked if Herrera had “any age limits?” Herrera responded, “Not
        particularly. What is it? . . . what’s the thing you want to do?”
                Over the next three months, the agent and Herrera ex-
        changed about 400 messages. In these messages, the agent said her
        daughter was eleven years old and sent a photograph of a young
        girl lying on a bed. The pair discussed how Herrera would teach
        the girl how to have sex, including oral and penetrative sex, which
        he would engage in with her with and without a condom. Herrera
        also assured the agent that he had “papers” showing he was free of
        sexually transmitted diseases. At no point did he contact the police
        or report the initial ad or these messages.
               The pair arranged for Herrera to meet the “daughter” at a
        Waffle House in Duluth, Georgia. Then, on the planned day, Her-
        rera drove about fifty miles from Athens, Georgia, to the restau-
        rant. In the parking lot, law enforcement arrested Herrera and
        seized his cell phone.
                In Herrera’s phone, law enforcement discovered the mes-
        sages with the agent. They also found thirty images of child erotica
        and suspected child pornography, as well as a document containing
        test results for sexually transmitted diseases. Law enforcement did
        not find a condom on Herrera or in his car.
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        4                      Opinion of the Court                23-13706

                                 B. Criminal Proceedings

                A grand jury in the Northern District of Georgia charged
        Herrera with one count of violating 18 U.S.C. § 2422(b). That pro-
        vision, as relevant here, provides criminal penalties for “[w]hoever,
        using . . . means of interstate . . . commerce,” “attempts to” “know-
        ingly . . . entice[]” anyone under eighteen “to engage in” child mo-
        lestation. 18 U.S.C. § 2422(b) (emphasis added); GA. CODE ANN. §
        16-6-4.
               Herrera proceeded to trial. At trial, Herrera testified that he
        traveled to Athens because he “thought there was a child in dan-
        ger.” He admitted messaging with the FBI agent but claimed he
        was attempting to gather information and arrange a meeting to
        rescue the child. He also said he didn’t know how the child erotica
        and suspected child pornography was on his phone.
                Herrera’s former girlfriend, Raina Cundiff, also testified in
        his defense. She spoke about their relationship and her observa-
        tions about Herrera’s use of pornography. She also testified that,
        in her lay opinion, she observed that Herrera exhibited what she
        believed to be characteristics of autism. At one point, Herrera’s
        attorney asked Cundiff, “Before you had sex, was there anything
        about your appearance or the way that you had groomed yourself
        that you mentioned to him?” But the government objected. Her-
        rera’s counsel responded that the question was “directly related to
        [Herrera’s] interest in children or whether he has it or not.” With-
        out explaining its ruling, the district court sustained the govern-
        ment’s objection.
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        23-13706               Opinion of the Court                         5

                Finally, Herrera called Dr. Tyler Whitney, a licensed clinical
        psychologist. Before trial, Herrera disclosed that Dr. Whitney, an
        expert witness, would testify that Herrera has autism spectrum dis-
        order (“ASD”), and that could explain his behavior here. The dis-
        trict court summarized Herrera’s representations about the scope
        of Dr. Whitney’s expected testimony as follows:
                      Herrera has ASD, including an explana-
                      tion of the methodology used to reach
                      this diagnosis.
                      Herrera did not receive a formal ASD di-
                      agnosis as a child, including the reason
                      for the delayed diagnosis.
                      Herrera exhibits certain traits that are
                      common in individuals with ASD.
                     Herrera’s behavior in this case could be
                     consistent with the inability of many au-
                     tistic persons to imagine how others
                     might view certain behavior.
                     Herrera’s behavior, though it may ap-
                     pear unusual to non-autistic persons,
                     could be consistent with Herrera’s state-
                     ment that he was trying to save the
                     “daughter.”
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        6                      Opinion of the Court                  23-13706

                      Herrera’s psychosexual assessment
                      showed no indications that he has a sex-
                      ual interest in children of either gender.
               The government objected to Dr. Whitney’s testimony. In
        the government’s view, the proposed testimony violated the Insan-
        ity Defense Reform Act and Federal Rules of Evidence 401, 402,
        403, and 704(b). The district court largely disagreed. It ruled that
        Dr. Whitney could testify, except that it excluded Dr. Whitney’s
        opinion that Herrera’s “psychosexual assessment showed no indi-
        cations that he has a sexual interest in children.”
                In reaching this conclusion that this limited testimony would
        violate Rule 704(b), the district court relied on our opinion in United
        States v. Gillis, 938 F.3d at 1195. Rule 704(b) prohibits expert wit-
        nesses in criminal cases from opining on whether a defendant had
        the required mental state to be convicted of the charged crime.
        FED R. EVID. 704(b).
               The district court also excluded the same testimony under
        Rule 403. As the district court saw things, Dr. Whitney’s opinion
        that Herrera’s “psychosexual assessment showed no indications
        that he has a sexual interest in children” had little probative value,
        and what it had was substantially outweighed by its potential prej-
        udicial effect. Dr. Whitney ultimately testified as Herrera proposed
        but not to the precluded opinion.
              At the end of the trial, the jury convicted Herrera as
        charged. The district court sentenced him to 235 months in prison.
               Herrera now appeals.
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        23-13706                 Opinion of the Court                         7

                           II.    STANDARD OF REVIEW

               We review a district court’s decision not to admit expert tes-
        timony for abuse of discretion. United States v. Frazier, 387 F.3d
        1244, 1258 (11th Cir. 2004). And we will “not reverse an evidentiary
        decision of a district court unless the ruling is manifestly errone-
        ous.” Id. (internal quotation marks and citation omitted). So “we
        must affirm unless we find that the district court has made a clear
        error of judgment, or has applied the wrong legal standard.” Id. at
        1259.
               As for a constitutional challenge to the exclusion of evi-
        dence, we review that de novo. United States v. Litsky, 18 F.4th 1296,
        1302 n.2 (11th Cir. 2021) (quoting United States v. Sarras, 575 F.3d
        1191, 1209 n.24 (11th Cir. 2009)).
                                  III.   DISCUSSION

               Herrera argues that the district court abused its discretion
        by wrongfully applying Federal Rules of Evidence 704(b) and 403
        to exclude Dr. Whitney’s testimony about his psychosexual assess-
        ment of Herrera. He also asserts that the district court abused its
        discretion by restricting Cundiff’s testimony. And together, Her-
        rera urges, these two errors violated his constitutional right to pre-
        sent his preferred defense.
               We begin there. Under the Constitution, a criminal defend-
        ant has “the implicit right to present evidence in their favor.” Gillis,
        938 F.3d at 1193; see also U.S. CONST. amends. V, VI. To evaluate
        whether the district court violated this right, “we examine (1)
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        8                       Opinion of the Court                  23-13706

        whether the right was actually violated, and (2) if so, whether that
        error was harmless beyond a reasonable doubt.” Gillis, 938 F.3d at
        1193.
               But the Federal Rules of Evidence also figure into this anal-
        ysis. The Federal Rules of Evidence govern what evidence can be
        admitted at trial in federal courts. After all, the right to present a
        criminal defense does not include “an unfettered right to offer tes-
        timony that is incompetent, privileged, or otherwise inadmissible
        under standard rules of evidence.” Taylor v. Illinois, 484 U.S. 400,
        410 (1988). So the Federal Rules of Evidence “do not abridge an
        accused’s right to present a defense so long as they are not ‘arbi-
        trary’ or ‘disproportionate to the purposes they are designed to
        serve.’” United States v. Scheffer, 523 U.S. 303, 308 (1998) (quoting
        Rock v. Arkansas, 483 U.S. 44, 56 (1987)).
               Still, “particular applications of a generally valid rule may
        unconstitutionally deny a defendant his rights . . . .” Gillis, 938 F.3d
        at 1193 (quoting United States v. Hurn, 368 F.3d 1359, 1363 n.2 (11th
        Cir. 2004)). But if a district court correctly excludes evidence under
        the evidentiary rules, to succeed on a constitutional challenge, a
        defendant must show “a compelling reason for making an excep-
        tion” to the rules. Id. at 1195.
               Herrera does not argue that any of the Federal Rules of Ev-
        idence are “arbitrary” or “disproportionate,” and thus invalid. In-
        stead, he contends only that the district court misapplied the Fed-
        eral Rules of Evidence when it limited Dr. Whitney’s and Cundiff’s
        testimony. Herrera also does not contend that a compelling reason
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        23-13706               Opinion of the Court                         9

        supports making an exception to the Federal Rules for his case. So
        his constitutional challenge depends on whether the district court
        wrongly applied the rules.
                But even there, Herrera concedes that any error in excluding
        Cundiff’s testimony would not alone warrant the vacatur of his
        conviction. So his constitutional challenge hinges on whether the
        district court properly excluded Dr. Whitney’s testimony that Her-
        rera’s “psychosexual assessment showed no indications that [Her-
        rera] has a sexual interest in children.”
                For the reasons we explain below, we conclude that the dis-
        trict court did not abuse its discretion when it limited Dr. Whitney’s
        testimony under Rule 704(b). And as a result, it did not violate Her-
        rera’s constitutional right to present his preferred defense. So we
        do not decide whether the district court also properly applied Rule
        403. Nor do we decide whether the district court abused its discre-
        tion in restricting Cundiff’s testimony because Herrera concedes
        that any error in that ruling would not alone be enough to vacate
        Herrera’s conviction.
               Our discussion proceeds in two parts. First, we explain the
        scope of Rule 704(b). Then, we articulate why our prior-panel-
        precedent in United States v. Gillis requires us to affirm the district
        court’s ruling. See 938 F.3d at 1195.
                                A. The Scope of Rule 704(b)
              Rule 704(b) provides that “[i]n a criminal case, an expert wit-
        ness must not state an opinion about whether the defendant did or
        did not have a mental state or condition that constitutes an element
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        10                     Opinion of the Court                 23-13706

        of the crime charged or of a defense.” To explain the rule’s scope,
        we need to walk through how and why it was adopted.
               Before the adoption of Rule 704, under the common law,
        witnesses at trial could not testify on “ultimate issues.” See Diaz v.
        United States, 602 U.S. 526, 531–32 (2024). “Ultimate issues” are “is-
        sues that the jury must resolve to the decide the case.” Id. at 531.
        In a murder case, for example, the prosecution must prove that the
        accused intentionally killed the victim. So ultimate issues include
        whether the accused was the person who killed the victim, whether
        the victim actually died, and whether the accused intended to kill
        the victim. Cf. id. at 531–32 (explaining the meaning and examples
        of ultimate issues). And a witness could not opine on any of them
        under the common law. The common law sought to “prevent[]
        witnesses from taking over the jury’s role.” Id. at 532.
                But by the 1940s, the “ultimate-issue rule” fell out of favor.
        Id. at 533. Some critics pointed out that even if witnesses testified
        on ultimate issues, juries could still decide whether to believe them.
        Id. Others highlighted that the rule excluded valuable testimony.
        Id. So in 1975, Congress adopted Federal Rule of Evidence 704,
        which permitted all ultimate-issue testimony in federal courts. Id.
              But nine years later, Congress walked that back. Id. In 1981,
        John Hinckley, Jr., attempted to assassinate President Ronald
        Reagan. Id. And at his trial, he argued he could not be convicted
        of murder because he was insane, so he could not have legally in-
        tended to kill President Reagan. Id. Expert witnesses for both the
        prosecution and defense testified about whether Hinckley was
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        23-13706               Opinion of the Court                        11

        insane. Id. Ultimately, the jury found Hinckley not guilty by reason
        of insanity. Id.
                Congress thought that the expert witnesses in the Hinckley
        trial had too much influence over the jury. So it adopted Rule
        704(b). That rule mandates that experts can’t testify to the “ulti-
        mate issue” of whether a criminal defendant had the required men-
        tal state to commit the charged crime. See id. at 533–34. Under
        Rule 704(b), then, if the charged crime requires the defendant to
        have “knowingly,” “willfully,” “intentionally,” or “recklessly” acted,
        for instance, an expert cannot offer his opinion on that subject.
               Not surprisingly, given the origins of Rule 704(b), had the
        rule existed during Hinckley’s trial, it would have barred the ex-
        perts from opining on whether Hinckley could have established the
        necessary intent attempt to kill President Reagan. And today, in
        our hypothetical murder case, expert witnesses could provide their
        opinion about who killed the victim and whether the victim died
        but not whether the accused intended to kill the victim.
                But Rule 704(b)’s exclusionary exception is “narrow.” Id. at
        534. It blocks only “expert opinions in a criminal case that are about
        a particular person (‘the defendant’) and a particular ultimate issue
        (whether the defendant has ‘a mental state or condition’ that is ‘an
        element of the crime charged or of a defense’).” Id. (emphasis
        added). It does not bar opinions that simply relate to the mental-
        state issue. See id. at 537.
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        12                     Opinion of the Court                  23-13706

              So experts can still help the jury decide the mental-state issue
        by providing valuable relevant information. They just can’t directly
        opine on the ultimate issue.
                                     B. Herrera’s Case
                Under 18 U.S.C. § 2422(b), to convict Herrera, the jury had
        to conclude he acted “knowingly” when he allegedly tried to entice
        a child to engage in sexual activity. So under Rule 704(b), as an
        expert, Dr. Whitney, could not testify on that subject. As a result,
        the question we must answer is whether the district court properly
        concluded that Dr. Whitney’s opinion that Herrera’s “psychosexual
        assessment showed no indications that [Herrera] has a sexual inter-
        est in children” would have been a direct opinion on that topic, or
        whether the testimony would have only related to that subject.
                Our prior precedent answers that question. In another 18
        U.S.C. § 2422(b) case, we held that a district court did not abuse its
        discretion when it excluded nearly identical expert testimony under
        Rule 704(b). In United States v. Gillis, Gillis, the defendant, was
        charged with violating 18 U.S.C. § 2422(b). 938 F.3d at 1190. He
        sought for his expert psychologist to testify to her opinions after “a
        psychosexual evaluation.” Id. at 1192. Gillis proffered that she
        would testify about his “psychosexual makeup” and “sexual devel-
        opment” and that Gillis didn’t “have an interest in prepubescent
        children.” Id. The district court concluded that testimony would
        be “a thinly veiled attempt by the defense to offer an expert opinion
        that Gillis lacked the requisite intent for the enticement offense . . .
        .” Id. at 1195. So the court excluded it under Rule 704(b). Id.
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        23-13706               Opinion of the Court                         13

               Gillis brought a constitutional challenge to the exclusion of
        that testimony. Id. at 1193. Although he didn’t argue that the dis-
        trict court improperly applied Rule 704(b), we needed to decide
        that question to assess the constitutional challenge. Id. We held
        that the district court did not abuse its discretion applying Rule
        704(b). See id. at 1195. We said we saw “no clear error in the district
        court’s determination that [the] proffered testimony would do
        more than ‘leave[ an] inference for the jury to draw,’ and instead
        veer[] into the impermissible territory of offering an opinion on
        [the defendant’s] mental state.” Id. (second bracket in original).
               We are bound to follow Gillis when it applies. Under our
        prior-panel-precedent rule, “a prior panel’s holding is binding on all
        subsequent panels unless and until it is overruled or undermined to
        the point of abrogation by the Supreme Court or by this court sit-
        ting en banc.” United States v. Archer, 531 F.3d 1347, 1352 (11th Cir.
        2008).
               Herrera sought for Dr. Whitney to offer testimony indistin-
        guishable from that of the expert in Gillis. Indeed, both Herrera
        and Gillis tried in 18 U.S.C. § 2422(b) cases to present their experts’
        opinions, based on psychosexual assessments, that they were not
        sexually attracted to children. See Gillis, 938 F.3d at 1192. To be
        sure, as Herrera notes, the proposed expert’s report in Gillis wasn’t
        part of the record on appeal, but Dr. Whitney’s report is. See id.
        But Herrera identifies, and we see, nothing in that report that
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        14                         Opinion of the Court                       23-13706

        suggests Dr. Whitney’s testimony would be meaningfully different
        from that in Gillis.1
                Because Herrera’s case is not materially distinguishable
        from Gillis, we must follow Gillis. As a result, we must conclude
        that the district court did not abuse its discretion under Rule 704(b)
        in excluding Dr. Whitney’s testimony that Herrera’s “psychosexual
        assessment showed no indications that [Herrera] has a sexual inter-
        est in children.”
              Herrera tries to get out from under the prior-panel-prece-
        dent rule in four ways. None succeed.
                First, Herrera notes that Gillis did not directly challenge the
        district court’s application of Rule 704(b). Instead, Gillis argued
        that the application of the rule was unconstitutional. See Gillis, 938
        F.3d at 1192–93. But we don’t see how that allows us to depart from
        Gillis’s holding that expert testimony of a defendant’s psychosexual
        assessment in a § 2422(b) case violates Rule 704(b).
                Second, Herrera also contends that in Gillis, we upheld the
        district court’s exclusion of the relevant testimony under Federal
        Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals,
        Inc., 509 U.S. 579 (1993). Herrera is mistaken. We affirmed the

        1 Herrera muses that the proposed testimony in Gillis may have been “far

        broader” than here, but he offers no basis for that speculation. And he notes
        the district court in Gillis expressed concern that the expert was overly reliant
        on “her clinical interview” with the defendant. See Gillis, 938 F.3d at 1192. But
        he doesn’t explain, and we don’t see, why that matters or how Dr. Whitney’s
        methodology differs.
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        23-13706               Opinion of the Court                         15

        district court’s exclusion of a separate expert’s testimony under
        those standards. See Gillis, 938 F.3d at 1191–94. But even if we had
        also upheld the exclusion of the relevant testimony under Rule 702
        and Daubert, that would make our Rule 704(b) ruling, at worst, an
        alternative holding. And we’ve explained that “an alternative hold-
        ing is not dicta but instead is binding precedent.” Hitchcock v. Sec’y,
        Fla. Dep’t of Corr., 745 F.3d 476, 484 n.3 (11th Cir. 2014).
                Third, Herrera contends another of our precedents predates
        and contradicts Gillis: United States v. Stahlman, 934 F.3d 1199 (11th
        Cir. 2019). In Stahlman, a § 2422(b) defendant tried to have an ex-
        pert testify very differently from the testimony here and in Gillis.
        Stahlman proffered that the expert would testify that he “intended
        to act out a fantasy, rather than have sexual contact with a minor.”
        Id. at 1220. The district court excluded the testimony under Rule
        704(b), and we affirmed. Id. at 1221–22.
                But Stahlman argued that the D.C. Circuit’s opinion in
        United States v. Hite, 769 F.3d 1154 (D.C. Cir. 2014), supported his
        position. Stahlman, 934 F.3d at 1221. In Hite, as the Stahlman panel
        noted, the D.C. Circuit allowed an expert in a § 2422(b) case to tes-
        tify that “the defendant . . . had not been diagnosed with any psy-
        chiatric condition that was associated with a sexual attraction to
        children.” Id. Distinguishing Stahlman’s facts from those of Hite,
        the panel opined that the testimony in Hite was permissible under
        Rule 704(b) because it did not “directly opine[] on the defendant’s
        intent.” Id.
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        16                      Opinion of the Court                    23-13706

                But as the difference in outcomes between Stahlman and Hite
        shows, to decide the issue in Stahlman, the panel did not need to
        give its opinion on the testimony in Hite. That makes its comments
        on the admissibility of the Hite testimony dicta. See United States v.
        Kaley, 579 F.3d 1246, 1253 n.10 (11th Cir. 2009) (“[D]icta is defined
        as those portions of an opinion that are ‘not necessary to deciding
        the case then before us.’”) (quoting United States v. Eersdorf, 126
        F.3d 1318, 1322 n.4 (11th Cir.1997))). And unlike holdings, dicta
        does not bind us. See Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744,
        762 (11th Cir. 2010) (“We are not required to follow dicta in our
        own prior decisions.”). So Stahlman does not relieve us of our ob-
        ligation to follow Gillis.
                Fourth, Herrera argues that the intervening Supreme Court
        decision in Diaz v. United States abrogated Gillis’s holding. See 602
        U.S. 526 (2024). But we may depart from our precedent because of
        an intervening Supreme Court decision only if that decision is
        “clearly on point and clearly contrary to the panel precedent.” Ed-
        wards v. U.S. Att’y Gen., 97 F.4th 725, 743 (11th Cir. 2024) (quoting
        Garrett v. Univ. of Ala. at Birmingham Bd. of Trs., 344 F.3d 1288, 1292
        (11th Cir. 2003)) (internal quotation marks omitted). That means
        the Supreme Court case must be “squarely on point” and must “ac-
        tually abrogate or directly conflict with, as opposed to merely weaken, the
        holding of the prior panel.” Id. (quoting Kaley, 579 F.3d at 1255).
        Diaz doesn’t satisfy these requirements.
               In Diaz, the Supreme Court held that “[a]n expert’s conclu-
        sion that ‘most people’ in a group have a particular mental state is
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        23-13706               Opinion of the Court                         17

        not an opinion about ‘the defendant’ and thus does not violate Rule
        704(b).” 602 U.S. at 538. The Court elaborated that Rule 704(b)
        bars only “opinions . . . ‘about’ the ultimate issue of the defendant’s
        mental state. . . .” Id. at 537. And that’s limited to testimony that
        “includes a conclusion on that precise topic, not merely if it con-
        cerns or refers to that topic.” Id. But the Court did not decide
        whether an opinion on a § 2422(b) defendant’s sexual attraction to
        minors equates to a “conclusion” on the mental state required to
        be convicted under the provision. So Diaz does not squarely con-
        tradict Gillis. And we can’t depart from Gillis because of that deci-
        sion.
               At bottom, we are bound by our precedent in Gillis. So we
        hold the district court did not abuse its discretion when, under Rule
        704(b), it excluded Dr. Whitney’s testimony that Herrera’s “psycho-
        sexual assessment showed no indications that [Herrera] has a sex-
        ual interest in children.” And for that reason—and because Herrera
        does not challenge the barring of that testimony on any basis other
        than as an alleged improper application of the Federal Rules of Ev-
        idence—the district court did not violate Herrera’s constitutional
        right to present a defense.
                                 IV.    CONCLUSION

               For these reasons, we affirm Herrera’s conviction.
                      AFFIRMED.