## Facts

- Adam Wayne Lebowitz, a 47-year-old physician, contacted K.S. through MySpace in October 2006; K.S. was 15 years old.
- K.S. had misrepresented his age to create a public MySpace profile, and his profile suggested he was 17 or 18.
- Lebowitz and K.S. exchanged online chats and emails that were sexual in nature; Lebowitz sent K.S. nude photographs of himself.
- In early communications, K.S. told Lebowitz he was 15.
- K.S. informed his mother, who contacted law enforcement; officers then monitored the communications.
- Lebowitz arranged an in-person meeting with K.S. at a hotel for sexual activity.
- At the hotel, Lebowitz and K.S. engaged in sexual conduct, and Lebowitz recorded sexually explicit images of K.S.
- Lebowitz was charged and convicted by a jury of producing child pornography (18 U.S.C. § 2251(a), (e)) and attempting to entice a child to engage in unlawful sexual activity (18 U.S.C. § 2422(b)).
- The district court imposed 320 months’ imprisonment on each count, to run concurrently.

## Issues

1. Whether electronic chat logs and emails were properly authenticated and admissible under the best-evidence rule.
2. Whether electronic evidence should have been suppressed under the Fourth Amendment due to allegedly unlawful searches or seizures.
3. Whether 18 U.S.C. § 2251(a) was unconstitutional, facially or as applied, including under the Commerce Clause.
4. Whether the evidence was sufficient to prove the elements of production of child pornography under § 2251(a) and attempted enticement under § 2422(b).
5. Whether the jury instructions misstated the law or reduced the government’s burden of proof.
6. Whether the Sentencing Guidelines were properly applied and whether the 320-month concurrent sentences were substantively reasonable.

## Decision

- The Eleventh Circuit affirmed Lebowitz’s convictions and sentences in full.
- The court held the electronic communications were properly authenticated and admission did not violate the best-evidence rule.
- The court affirmed denial of suppression motions, concluding the searches were authorized by valid warrants or exceptions and stayed within lawful scope.
- The court rejected constitutional attacks on § 2251(a), including Commerce Clause arguments, and upheld the statute as applied.
- The court found the evidence sufficient for a rational jury to convict on both counts.
- The court upheld the jury instructions when viewed as a whole.
- The court affirmed the Guidelines calculations and held the within-Guidelines sentence was not substantively unreasonable.

## Legal Principles

- Evidence is properly authenticated when there is sufficient proof for a reasonable juror to find the item is what the proponent claims. (Fed. R. Evid. 901(a))
- The best-evidence rule is satisfied by accurate printouts or copies of electronic communications when competent proof shows they reliably reflect the original data; production of underlying servers or every original file is not required.
- Appellate review of suppression rulings applies de novo review to legal conclusions and clear-error review to factual findings; evidence is not excluded where searches are supported by valid warrants or recognized exceptions and executed within scope.
- 18 U.S.C. § 2251(a) is a valid exercise of Congress’s Commerce Clause power when the statutory interstate-commerce element is met, including use of materials that traveled in interstate or foreign commerce.
- Sufficiency of the evidence is assessed in the light most favorable to the government; conviction stands if any rational trier of fact could find each element beyond a reasonable doubt.
- For § 2422(b), the focus is on the defendant’s intent and actions aimed at persuading, inducing, enticing, or coercing a minor to engage in unlawful sexual activity; explicit communications and steps to arrange a sexual encounter can establish attempt.
- Sentences are reviewed for procedural correctness (including Guidelines application) and substantive reasonableness; a within-Guidelines sentence may be affirmed based on offense seriousness, deterrence, and protection of the public.

## Conclusion

The Eleventh Circuit affirmed Lebowitz’s convictions for producing child pornography and attempting to entice a minor, holding that the electronic communications were properly admitted, suppression was unwarranted, § 2251(a) was constitutional as applied, the evidence supported each element beyond a reasonable doubt, the jury instructions were adequate, and the 320-month concurrent sentences were procedurally and substantively sound.


United States v. Lebowitz, 676 F.3d 1000 (11th Cir. 2012)