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159 Fed.Appx. 128 
159 Fed.Appx. 128, 2005 WL 3438434 (C.A. 1 (Fla.)) 
(Cite as: 159 Fed.Appx. 128) 
110 Criminal Law 
110X.X Trial 
110XX(E) Arguments and Conduct of Coun-
sel 
110k702 Scope and Effect of Opening 
Statement 
110k704 k. For Defense. Most Cited 
Cases 
Criminal Law 110 C=730(2) 
110 Criminal Law 
110XX Trial 
110XX(E) Arguments and Conduct of Coun-
sel 
110k730 Action of Court 
110k730(2) 
k. 
Opening 
Statement. 
Most Cited Cases 
In prosecution for attempting to travel in foreign 
commerce to engage in illicit sexual conduct and 
attempting to induce a minor to engage in prostitu-
tion, trial court did not abuse its discretion in limit-
ing defendants opening statement to prevent de-
fendant from making legal arguments; defendant re-
peatedly disregarded court's ruling regarding use of 
legal terms such as "substantial steps" in opening 
argument, forcing govemmcnt to object at each in-
stance, and rather than merely stating evidence that 
would come out at trial, defendant argued he was 
led to believe by undercover detective that Costa 
Rican government tested prostitutes for diseases. 
Criminal Law 110 €:=474 
110 Criminal Law 
110XVII Evidence 
110XVII(R) Opinion Evidence 
110k468 Subjects of Expert Testimony 
110k474 k. Mental Condition or Capa-
city. Most Cited Cases 
In prosecution for attempting to travel in foreign 
commerce to engage in illicit sexual conduct and 
attempting to induce a minor to engage in prostitu-
tion, proposed expert psychiatric testimony describ-
ing witness's assessment of defendant's depression 
as an explanation that provided insight into motiva-
Page 2 of 6 
Page 2 
tions behind his actions, but not as an excuse for 
those actions, failed to support a legally acceptable 
theory demonstrating a lack of mens rea by negat-
ing either knowledge or intent, and thus, trial court 
did not abuse its discretion in prohibiting defendant 
from presenting the expert testimony. 
•129 Anne R. Schultz, U.S. Attorney's Office, 
Miami, FL, for Plaintiff-Appellee. 
Milton Hirsch and David Oscar Marcus, Miami, 
FL, for Defendant-Appellant. 
Appeal from the United States District Court for the 
Southern District of Florida. 
Before BLACK, CARNES and PRYOR, Circuit 
Judges. 
PER CU 
**1 
Clarke appeals his convictions for 
attempting to obtain a minor to engage in a com-
mercial sex act, 18 U.S.C. §§ 1591(a), 1594(a), at-
tempting to travel in foreign commerce to engage in 
illicit sexual conduct with another person, 18 
U.S.C. § 2423(c), (e), and attempting to induce a 
minor to engage in prostitution, 18 U.S.C. § 
2422(b). Clarke asserts the district court erred in its 
(I) interpretation of 18 U.S.C. § 2422(b) when it 
denied Clarke's motion for judgment of acquittal, 
(2) refusal to instruct the jury on the defense of en-
trapment by estoppel, and (3) limitation of Clarke's 
opening statement and prohibition of expert psychi-
atric testimony. The district court did not err, and 
we affirm Clarke's convictions. 
I. DISCUSSION 
A. Statutory interpretation of 18 U.S.0 § 2242(b) 
[1] Clarke asserts his conviction for persuading 
a minor to engage in prostitution "cannot stand," as 
he was neither charged with, nor could he have 
been convicted of, "engaging) in any sexual activ-
ity (including prostitution) for which any *130 per-
son can be charged with a crime." According to 
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159 Fed.Appx. 128 
159 Fed.Appx. 128, 2005 WL 3438434 (C.A.11 (Fla.)) 
(Cite as: 159 Fed.Appx. 128) 
Clarke, § 2422(b), as written, only makes it a crime 
to induce a minor to engage in any sexual activity if 
that sexual activity is criminal. Clarke claims the 
statutory construction, specifically, the lack of a 
comma following the word "prostitution," means 
the phrase "for which any person can be charged 
with a criminal offense" must be read to modify 
the prior phrase "prostitution or any sexual activ-
ity." Clarke further asserts based upon this statutory 
construction of § 2422(6) that Congress only inten-
ded to punish a person for engaging in "illegal 
prostitution" overseas, but "not all forms of prosti-
tution." Moreover, Clarke argues, although Con-
gress has the power to criminalize the conduct of a 
U.S. citizen who engages in conduct in a foreign 
country that is deemed legal in that country, Con-
gress only criminalized "engaging in underage 
prostitution as defined and proscribed by the law of 
the jurisdiction in which the act of prostitution oc-
curs." Accordingly, Clarke argues, the prosecution 
was required to, but did not, present evidence the 
type of prostitution in which he intended to engage 
was "the sort of prostitution for which any person 
can be charged with a crime in Costa Rica." 
"The interpretation of a statute is a question if 
law subject to de novo review." United States 
Murrell, 368 F.3d 1283, 1285 (11th Cir.), cert. 
denied,543 U.S. 960, 125 S.Ct. 439, 160 L.Ed.2d 
324 (2004) (citation omitted). Subsection (b) of § 
2422 states: 
Whoever, using the mail or any facility or 
means of interstate or foreign commerce ... know-
ingly persuades, induces, entices, or coerces any in-
dividual who has not attained the age of 18 years, 
to engage in prostitution or any sexual activity for 
which any person can be charged with a criminal 
offense, or attempts to do so, shall be fined under 
this title and imprisoned not less than 5 years and 
not more than 30 years. 
**2 Clarke cites no authority to support his 
contention the phrase "for which any person can be 
charged with a criminal offense" must be read to 
modify both "prostitution" and "any sexual activ-
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Page 3 
ity." moreover, prostitution is a form of sexual 
activity, and Clarke's reading results in the term 
"prostitution" being superfluous, which must be 
avoided. United States I Ballinger, 395 F.3d 1218, 
1236 (11th Cir.) (en banc) (noting it is a cardinal 
principle of statutory construction that a statute 
must be construed such that no clause, sentence, or 
word shall be superfluous, void, or insignificant), 
cert. denied,-- U.S. —, 126 S.Ct. 368, 163 
L.Ed.2d 77 (2005). Finally, even if Clarke were 
correct that the Government was required to show 
the prostitution in question is illegal in Costa Rica, 
both Agent Patterson and Detective Love testified it 
is illegal to engage in prostitution with a minor in 
Costa Rica. Accordingly, the district court did not 
err in its interpretation of § 2422(b). 
B. Jury instruction on entrapment by estoppel 
[2] Clarke next contends the district court erred 
by failing to give an entrapment by estoppel •in-
struction to the jury, as he provided sufficient evid-
ence for the matter to go to the jury. Clarke con-
tends whether he knew Detective Richard Love was 
acting on behalf of the Federal Bureau of Investiga-
tion is irrelevant, as the defense of entrapment by 
estoppel focuses on the conduct of government offi-
cials, rather than on the defendant's state of mind. 
Clarke explains "law enforcement may not benefit 
from its own wrongful act," whereby a citizen is 
prosecuted for engaging in criminal conduct that 
law enforcement counseled him to undertake. 
Clarke asserts his reliance on Detective •131 Love 
was reasonable, especially since Detective Love 
held himself out to be "a very experienced, quali-
fied, law-abiding purveyor of sex 
tourism." 
Moreover, Clarke argues, he was assured by De-
tective Love the prostitutes were required to be 
tested for diseases once a month, and Detective 
Love "acknowledged that the logical and ordinary 
inference from his representation ... was that it was 
the government of Costa Rica that imposed such a 
requirement." Clarke further argues both Detective 
Love and the website assured him the sexual activ-
ities being offered were "safe" and "secure." Ac-
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cording to Clarke, the representations of Detective 
Love and the website "told a single, consistent, co-
herent story: the sex tourism being offered to [him] 
was legal." 
The denial of a requested jury instruction is 
viewed for an abuse of discretion. United States 
Trujillo. 146 F.3d 838, 846 (11th Cir.1998). "The 
trial court has authority to refuse to instruct the jury 
on a defense where the evidence used to support it, 
if believed, fails to esta ish a legally cognizable 
defense." United Stares 
Billue. 994 F.2d 1562, 
1568 (11th. Cir.1993). To assert the defense of en-
trapment by estoppel, a defendant must " 'actually 
rely on a point of law misrepresented by an official 
of the state; and such reliance must be objectively 
reasonable-given the identity of the official, the 
point of law represented, and the suits" 
the 
misrepresentation.' " United States 
179 
F.3d 1328, 1332 (11th Cir.1999) (citation omitted). 
"The defense 'focuses on the conduct of the Gov-
ernment officials, not on the state of mind of the 
defendant.' "Id. (citation omitted). 
•`3 Clarke does not allege Detective Love ever 
identified himself to Clarke as a law enforcement 
officer. Clarke knew Detective Love as his alias, 
Richard Baxter, the owner of CRTV, who provided 
a travel service whereby clients were connected 
with prostitutes in Costa 
Rica. Accordingly, 
Clarke's reliance on statements made by Detective 
Love, in the guise of Richard Baxter, was object-
ively unreasonable, as a reasonable person would 
not rely upon a pimp for legal guidance. See id. 
Moreover, Clarke points to no statements in the re-
cord where he either asked Detective Love about 
the legality of the services provided by CRTV or 
Detective Love volunteered that CRTV's services 
were legal. On the contrary, Detective Love instruc-
ted Clarke what Clarke was doing was not 
"kosher," and Clarke responded he "knew that" and 
figured as much. Contrary to Clarke's contentions, 
the terms "secure" and "safe" are not synonymous 
with "legal." Moreover, Detective Love's state-
ments he occasionally had sex with the prostitutes 
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does not indicate such behavior was legal. Further-
more, as the district court noted, the only 
"affirmative statement" made by Detective Love, 
that the prostitutes were required to be tested 
monthly for disease, was subsequently followed in 
the conversation by Detective Love's statement to 
Clarke that the conduct in which he intended to en-
gage was not kosher. Accordingly, the district court 
did not abuse its discretion by refusing to instruct 
the jury regarding the defense of entrapment by es-
toppel. 
C. Fair trial 
Finally, Clarke asserts the "cumulative effect 
of adverse evidentiary and procedural rulings by the 
trial court deprived [him] of a fair trial under the 
5th and 6th Amendments." According to Clarke, 
the district court "unfairly limited" his opening 
statement by (I) excluding the board he intended to 
use a visual aid, and (2) sustaining objections by 
the Government when he stated the evidence would 
show he had not taken any "substantial steps" and 
law enforcement officers led him to •132 believe 
the Costa Rican government tested the prostitutes 
for diseases. Clarke contends as a result he was pre-
vented from "laying two essential building blocks" 
of his defense, that the evidence would show (1) he 
had not taken the "substantial step" to distinguish 
his "non-criminal" conduct from criminal attempt, 
and (2) law enforcement officers led him to believe 
the conduct he was planning was "not proscribed by 
criminal sanctions." Clarke further contends he was 
prevented from presenting testimony, which sup-
ported his defense, by Dr. Haber, who would have 
testified Clarke (1) was not a pedophile, (2) was not 
sexually aroused by or attracted to prepubescent fe-
males, and (3) suffers from clinical depression. 
We review for an abuse of discretion Clarke's 
claim the district court improper/ i limited his open-
ing statement. See United States 
Burns, 298 F.3d 
523, 543 (6th Cir.2002) (stating a district judge's 
conduct of a trial, including opening statements, is 
reviewed for an abuse of discretion). "A district 
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159 Fed.Appx. 128 
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court's decision regarding the admissibility of psy-
chiatric evidence is generally subject to the abuj
of discretion standard of review." United States 
Westcott, 83 F.3d 1354, 1357 (11th Cir.1996). 
**4 An opening statement gives counsel the 
opportunity to state what evidence will be presented 
in order to make it easier for the jurors to under-
stand
!
what is to follow, and is of an occasion for 
argument. See United States 
Zielie, 734 F.2d 
1
1447, 1455 (11th Cir.I984 
a rogated on other 
grounds by United States 
Chestang, 849 F.2d 
528, 531 (I I th Cir.1988). ' 
e scope and extent of 
the defendant's opening statement rests largely
the discretion of the trial court." United States 
Freeman, 514 F.2d 1184, 1192 (10th Cir.197 . 
The court "can exclude irrelevant facts and stop ar-
gument if it occurs." Zielie, 734 F.2d at 1455. 
The Insanity Defense Reform Act provides: 
It is an affirmative defense to a prosecution 
under any Federal statute that, at the time of the 
commission of the acts constituting the offense, the 
defendant, as a result of a severe mental disease or 
defect, was unable to appreciate the nature and 
quality or the wrongfulness of his acts. Mental dis-
ease or defect does not otherwise constitute a de-
fense. 
18 U.S.C. § 17(a). When evaluating the ad-
missibility of psychiatric evidence, courts should 
consider the following principles: (1) "(p)sychiatric 
evidence of impaired volitional control or inability 
to reflect on the ultimate consequences of one's 
conduct is inadmissible whether offered to support 
an insanity defense or for any other purpose;" (2) 
"Congress intended to insure that the insanity de-
fense is not improperly resurrected in the guise of 
showing some other affirmative defense such as 
that the defendant had a 'diminished responsibility' 
or some similarly asserted state of mind which 
would serve to excuse the offense;" and (3) 
"Congress was concerned about the danger that ex-
pert psychiatric testimony regarding inherently mal-
leable psychological concepts can be misused at - 
al to mislead or confuse the jury." United States. 
Page 5 
Cameron, 907 F.2d 1051, 1061-62 (11th Cir.1990) 
(internal quotation and citation omitted) (emphasis 
in original). "Evidence offered as 'psychiatric evid-
ence to negate specific intent' is admissible, 
however, when such evidence focuses on the de-
fendant's specific state of mind at the time of the 
charged offense." Id. at 1067. "Because psychiatric 
evidence (1) will only rarely negate specific intent, 
(2) presents an inherent danger that it will distract 
the jury[ ) from focusing on the actual presence or 
absence of mens rea,*133 and (3) may easily slide 
into wider usage that opens up the jury to theories 
of defense more akin to justification, district courts 
must examine such psychiatric evidence carefully 
to ascertain whether it would, if believed, support a 
legally acceptable theory of lack of mens rea." Id. 
(internal quotations and citation omitted). 
As an initial matter, Clarke failed to include the 
board he intended to use as a visual aid in the re-
cord on appeal, as required by Federal Rule of A 
pellate Procedure I0(bX2). See Fernandez I. 
United States, 941 F.2d 1488, 1493 (I 1th Cir.1991) 
(holding the appellant is responsible for ensuring 
all documents buttressing his claims appear in the 
record). Consequently, we are unable to determine 
whether the district court abused its discretion by 
determining Clarke could display only the left-band 
side during his opening statement. 
**5 [3] Prior to Clarke's opening statement, the 
court ruled he was prohibited from making legal ar-
gument in his opening statement. Clarke, however, 
repeatedly disregarded the court's ruling regarding 
the use of legal terms such as "substantial steps," 
using such language and forcing the Government to 
object at each instance. In addition, rather than 
merely stating the evidence that would come out at 
trial regarding Detective Love's telling him the 
prostitutes were required to be tested, Clarke ar-
gued he was led to believe the Costa Rican govern-
ment tested the prostitutes for diseases. Contrary to 
Clarke's contentions, he did not have a right to 
make legal arguments in his opening statement. See 
Zielie, 734 F.2d at 1455. Moreover, a court is per-
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mined to stop a party from arguing during its open- 
(Fla.)) 
ing statement, as occurred in the present case. See 
id. Accordingly, the district court did not abuse its 
END OF DOCUMENT 
discretion by prohibiting Clarke from making legal 
arguments during his opening statement. 
[4] Clarke also claims the district court abused 
its discretion by prohibiting expert psychiatric testi-
mony. At the hearing, Dr. Haber testified Clarke in-
tended to take the actions necessary to travel to 
Costa Rica, and knew what he was "signing up for 
was not legal." Dr. Haber also testified Clarke was 
conscious of his actions, had the capacity for self-
reflection over the course of the telephone conver-
sations, and had "a requisite understanding of his 
actions and their consequences." Dr. Haber de-
scribed her acsecsment of Clarke's depression as an 
explanation that provided insight into the motiva-
tions behind his actions, but was not an excuse for 
those actions. Accordingly, even if believed, Dr. 
Haber's testimony failed to support a legally accept-
able theory demonstrating a lack of mess rea, but, 
on the contrary, as she stated, only served to ex-
plain Clarke's actions, rather than negate either the 
knowledge or intent behind those actions. See 
Cameron. 907 F.2d at 1067. Consequently, the dis-
trict court did not abuse its discretion in prohibiting 
Clarke from presenting expert psychiatric testi-
mony. 
H. CONCLUSION 
The district court did not err in its interpreta-
tion of 18 U.S.C. § 2422(b). Additionally, the dis-
trict court did not abuse its discretion when it re-
fused to instruct the jury on the defense of entrap-
ment by estoppel or by limiting Clarke's opening 
statement and prohibiting expert psychiatric testi-
mony. We affirm Clarke's convictions. 
AFFIRMED. 
C.A.11 (Fla.),2005. 
U.S. I. Clarke 
159 Fed.Appx. 128, 2005 WL 3438434 (C.A.11 
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Wzstlaw. 
Page 1 
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F.3d —) 
UNITFip STATES OF AMERICA, Plaintiff-Ap-
pellee, 
DONALD J. DEVERSO, Defendant-Ap-
pellant. 
C.A.I1,2008. 
UNITED STATES OF AMERICA, Plaintiff-Ap-
pellee, 
v. 
DONALD J. DEVERSO, Defendant-Appellant. 
No. 06-16048 D.C. Docket No. 05-00034 CR-
FTM-29-SPC 
United States Court of Appeals, Eleventh Circuit. 
(March 5, 2008) 
Appeal from the United States District Court for the 
Middle District of Florida 
Before DUBINA and KRAVITCH, Circuit Judges, 
and GOLDBERG,* Judge. 
DUBINA, Circuit Judge:DUBINA, Circuit Judge: 
Appellant Donald J. Deverso ("Deverso") ap-
peals his convictions for possessing materials in-
volving a depiction of a minor engaged in sexually 
explicit activity, in violation of 18 U.S.C. § 
2252(aX4XB) and (bX2) (Count One); transporting 
materials involving a depiction of a minor engaged 
in sexually explicit activity, in violation of 18 
U.S.C. § 2252(aX1) and (bX1) (Count Two); "1' 
and using a minor to engage in sexually explicit 
conduct outside of the United States for the purpose 
of producing a visual depiction of such conduct and 
transporting that visual depiction into the United 
States, in violation of 18 U.S.C. § 2251(cX2XB) 
and (e) (Count Three). Deverso's appeal presents 
three issues for review, two of which present novel 
questions concerning the authenticity of foreign 
public documents under Federal Rule of Evidence 
902(3) and a mistake of age defense under 18 
U.S.C. § 2251(c). After reviewing the record, read-
ing the parties' briefs, and having the benefit of oral 
argument, we conclude that the Government prop-
erly authenticated the foreign document it admitted 
into evidence, and Count Three does not contain a 
scienter element as to age. Accordingly, we affirm 
Deverso's convictions. 
I. BACKGROUND 
The Government presented the following evid-
ence at trial. In 2004, the Department of Homeland 
Security ("DHS") received information regarding 
Deverso's foreign travel and began investigating 
him for possessing child pornography and traveling 
abroad to engage in sex with minors. DHS investig-
ators interviewed Deverso's wife, Zong Yu Deverso 
("Mrs.Deverso"). Mrs. Deverso turned over to in-
vestigators various computer media and printouts 
that she surreptitiously obtained from Deverso. De-
verso was in some of the pictures that depicted 
young girls in various stages of undress. Investigat-
ors discovered that one of the girls in the pictures 
was Beverly Datanagan ("Beverly"). 
During a subsequent search of Deverso's resid-
ence pursuant to a valid search warrant, investigat-
ors found compact and floppy disks, computer com-
ponents, and a computer. Deverso originally set up 
his computer in a small room or closet that the fam-
ily used for a nursery. It was the only computer 
with intemet access, and Deverso's account was the 
only account that was password protected. Investig-
ators reviewed the compact disks seized from De-
verso's residence and discovered two disks, entitled 
MM Texas and Asians 7, that contained child por-
nography. One of the investigators testified that he 
had seen some of the images on the compact disks 
in other child pornography investigations. 
One of Deverso's fellow inmates, Michael 
Lewis ("Lewis"), testified that Deverso admitted 
that he had been involved with two underage girls 
in Manila, Philippines, during his relationship with 
his "fiancee" Beverly. Lewis also stated that De-
verso admitted that the disks belonged to him but 
that he intended to shift the blame to his son, who 
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was living with Deverso at the time of the search. 
Lewis testified that Deverso commented to him 
"that we all have a little pedophile in us." (R. 
V01.6, p. 429.) 
Investigators also testified that they found 
Beverly's name on the back of one of the digital im-
ages and discovered romantic email chats between 
Deverso and Beverly. Under Deverso's account and 
in a folder titled Bev, investigators found pictures 
of Beverly, some of which were sexually explicit. 
Deverso allegedly took these pictures between Oc-
tober 15 and 17, 2004. 
Dante Orate ("Orate"), Special Agent with 
DHS in Manila, testified that he personally met 
with Beverly after authorities helped him locate 
her. Beverly brought a birth certificate for Orate to 
review. Orate requested a copy of the birth certific-
ate from the National Census and Statistics Office 
and had it certified at the U.S. Embassy. Orate 
stated that the copy of the birth certificate was ex-
actly the same as the birth certificate Beverly 
showed him at their meeting. The date of birth on 
the copy of the birth certificate was November 10, 
1986. The Government proffered the document as 
evidence that Beverly was a minor at the time De-
verso had sex with her, and Deverso objected on 
the grounds that the document was an incomplete 
document because it did not have a signature under 
the heading "Certificate of Attendant at Birth." (R. 
Vol.6, p. 322.) 
Beverly testified that her date of birth was 
November 10, 1986, and she was 17 when she met 
Deverso in October 2004. She stated that she had 
sex with Deverso when she was 17, and she told 
Deverso that she was 17. She also testified that De-
verso sent her money for her 18th birthday. 
After the Government concluded its case-
in-chief, Deverso moved for judgments of acquittal 
on all counts and moved for dismissal of Count 
Two, arguing that it was unconstitutional facially 
and as-applied. The district court denied the mo-
tions. 
Page 2 of 7 
Page 2 
Deverso took the stand and denied having sex 
with Beverly in October 2004. Deverso also stated 
that Beverly did not tell him that she was 17; in-
stead, Beverly represented herself to be 18 or 19. 
Deverso testified that the hotel clerk did not inquire 
about Beverly's age when they registered, and no 
one questioned her age when they purchased alco-
holic drinks. Deverso stated that he sent Beverly 
money for her 19th, not 18th, birthday. Deverso 
also denied telling his fellow inmate anything about 
his travels or having sex with minors. He commen-
ted that his testimony was the truth. 
During the charge conference, Deverso objec-
ted to an instruction that "the defendant's awareness 
of the age of the minor is not an element of the of-
fense," and that mistake of age is not a defense to 
Count Three. Instead, Deverso requested that the 
district court instruct the jury that mistake of age is, 
in fact, an affirmative defense to Count Three. The 
Government responded that the instruction was a 
correct statement of the law. The district court con-
cluded that because knowledge of age is not an ele-
ment of 18 U.S.C. § 2251, mistake of age is not a 
defense. 
The jury found Deverso guilty on all counts. 
The district court sentenced him to concurrent 
terms of 120 months imprisonment on Count One 
and 195 months imprisonment on Counts Two and 
Three. Deverso filed a timely notice of appeal. 
II. ISSUES 
1. Whether the district court erred in admitting 
a certified copy of a birth certificate as a foreign 
public document pursuant to Federal Rule of Evid-
ence 902(3). 
2. Whether the district court abused its discre-
tion in refusing to instruct the jury on mistake of 
age on Count Three. 
3. Whether the district court erred in denying 
Deverso's motion for judgment of acquittal on 
Count One. 
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III. STANDARDS OF REVIEW 
We review for abuse of discretion the distri t 
court's admission of evidence. See United Stain 
Maragh, 174 F.3d 1202, 1204 (11th Cir.1999). f 
the defendant fails to object at trial to the admission 
i
of evidence, the court reviews the distri 
court's 
ruling for plain error only. United States 
Baker. 
432 F.3d 1189, 1202 (11th Cir.2005). " 
ere an 
appellant has objected to a jury instruction at trial, 
f
we review the court's decision to use that 'nstruc-
tion for abuse of discretion." United States 
Dean. 
487 F.3d 840, 847 (11th Cir.2007), petition or cert. 
filed,76 U.S.L.W. 3240 (U.S. Oct. 25, 2007) (No. 
07-553). "We review a district court's decision to 
deny a motion for judgment of acquittal based on 
I
fficiency of the evidence de novo." United States 
Dulcip 441 F.3d 1269, 1276 (11th Cir.2006). In 
determining whether the Government presented 
sufficient evidence, the court "must review the 
evidence in the light most favorable to the 
[G]ovenunent and draw all reasonable factual infer-
ences in favor of the jury's verdict." Id. 
IV. DISCUSSION 
A. Admission of the birth certificate 
Deverso argues that the district court erred in 
admitting a copy of Beverly's birth certificate into 
evidence to establish that Beverly was under the 
age of 18 at the time of the alleged sexual en-
counter. First, he claims that the birth certificate is 
a business record, and the Government did not lay a 
proper foundation for its admission. See28 U.S.C. § 
1732 (governing admission of business records into 
evidence). Second, Deverso contends that the Gov-
ernment did not authenticate the birth certificate, 
and the document did not bear the required indicia 
of reliability. He claims that while the birth certific-
ate may have been attested to by an appropriate in-
dividual listed in Federal Rule of Evidence 902(3), 
the document itself does not contain the minimum 
information to appear valid on its face. Deverso 
questions the authenticity of the document because 
the certificate states that it certifies that "Beverly 
Regidor Datanagan who was allegedly born on 
November 10, 1986 ... appears in the National In-
dices for birth." (R. Exhibit No. 5.) Thus, Deverso 
argues that the document is not what the Govern-
ment claims it to be-a birth certificate-but is, in-
stead, a document containing an "alleged" date of 
birth. 
A review of the record indicates that Deverso 
objected to the admission of the document on the 
grounds that what purports to be a copy of the ori-
ginal or certified copy of the original does not have 
a signature under the heading "Certificate of At-
tendant at Birth." Specifically, he claimed that it 
was an incomplete document. (R. Vol.6, p. 322.) 
This trial objection is different than the objections 
Deverso proffers on appeal. Consequently, to ob-
tain relief, Deverso must demonstrigp plain error 
warranting relief. See United States I Cotton. 535 
U.S. 625, 631-32, 122 S.Ct. 1781, 1785 (2002) 
("[B]efore an appellate court can correct an error 
not raised at trial, there must be (I) error, (2) that is 
plain, and (3) that affect(s] substantial rights ... 
(and) (4) ... seriously affect(s) the fairness, integ-
rity,
(
or public reputa' n of judicial proceed-
ings."(quoting Johnson 
United States, 520 U.S. 
461, 466-67, 117 S.Ct. 
44, 1549 (1997) (internal 
citations and quotation marks omitted)). 
The Government admitted the document as a 
foreign public document pursuant to Federal Rule 
of Evidence 902(3). This rule provides, in part, that 
Extrinsic evidence of authenticity as a condi-
tion precedent to admissibility is not required with 
respect to ... (3) Foreign public documents. A 
document purporting to be executed or attested in 
an official capacity by a person authorized by the 
laws of a foreign country to make the execution or 
attestation, and accompanied by a final certification 
as to the genuineness of the signature and official 
position (A) of the executing or attesting person, or 
(B) of any foreign official whose certificate of 
genuineness of signature and official position 
relates to the execution or attestation or is in a 
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Page 4 of 7 
Page 4 
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(Cite as: — F.3d —) 
chain of certificates of genuineness of signature and 
official position relating to the execution or attesta-
tion. A final certification may be made by a secret-
ary of an embassy or legation, consul general, con-
sul, vice consul, or consular agent of the United 
States, or a diplomatic or consular official of the 
foreign country assigned or accredited to the United 
States. If reasonable opportunity has been given to 
all parties to investigate the authenticity and accur-
acy of official documents, the court may, for good 
cause shown, order that they be treated as pre-
sumptively authentic without final certification or 
permit them to be evidenced by an attested sum-
mary with or without fmal certification. 
FED. R. EVID. 902(3). 
There is no requirement in Rule 902(3) that di 
document itself be signed. See United States 
Squillacote, 221 F.3d 542, 562 (4th Cir.2000). "The 
rules are written in the alternative-foreign docu-
ments may be authenticated by a certification from 
the official executing the document or by an offi-
cial attesting to the document." Id. 
There are two requirements for the authentica-
tion of a foreign document. "First, there must be 
some indication that the document is what is pur-
ports to be. Thus, the proffered document must be 
executed by a proper official in his official capa-
city, or the genuineness of the document must be 
attested to by a proper official 
official capa-
city." Id.; see also United States Doyle, 130 F.3d 
523, 545 (2d Cir.1997) (noting that the rule is not 
concerned with establishing the with of information 
contained in the proffered document but, instead, is 
concerned only with "assuring that evidence is what 
it purports to be"). "Second, there must be some in-
dication that the official vouching for the document 
is who he purports to be." Squillacote, 221 F.3d at 
562. Accordingly, "the rules require that one of a 
specified group of foreign officials must issue a fi-
nal certification attesting to the genuineness of sig-
nature and title of the person executing or attesting 
to the document, or of another official who has cer-
tified the signature and position of the person ex-
ecuting or attesting to the document." Id. 
The Government met these requirements here. 
The Government established that Agent Orate re-
quested and obtained a copy of Beverly's birth cer-
tificate from the Philippine National Census and 
Statistics Office and that he had the copy authentic-
ated and certified at the United States Embassy in 
Manila. The copy of Beverly's birth certificate was 
accompanied by a certificate from Richard Ambrad, 
Embassy Coordinator with the Government of the 
Philippines, attesting that the copy of Beverly's 
birth certificate was a true copy of an official re-
cord authorized by the law of the Philippines to be 
reported and recorded in the National Census and 
Statistics Office. That certification was accompan-
ied by a fmal certification by Kimberly A. Russell, 
Vice Consul of the United States in the Philippines. 
Additionally, the copy of the birth certificate was 
stamped as a certified copy and affixed with the 
seal of Luzviminda N. Cruz, whom Vice Consul 
Russell certified was "Clerk 11, National Statistics 
Office, Quezon City, Republic of the Philippines." 
Because the Government met the requirements for 
self-authentication of the foreign document, it did 
not have to lay a foundation for admission of the 
document as a business record. SeeFED.R.EVID. 
902, advisory committee note to para. (3) (stating 
that this paragraph "provides a method for extend-
ing the presumption of authenticity to foreign offi-
cial documents by a procedure of certification"). 
Furthermore, to the extent that Deverso chal-
lenges the reliability of the information contained 
in the birth certificate, such as Beverly's date of 
birth and the lack of signature of the attendant at 
birth, that challenge goes to the weight of the evid-
ence, not its admissibility on grounds of authenti-
city. See, e.g., Doyle, 130 F.3d at 545 ("(T)he offi-
cial does not need to attest to the truth or trustwor-
thiness of the facts contained in the document; ac-
curacy of its contents is the concern of other Feder-
al Rules."). Deverso fails to establish that Beverly's 
birth certificate is not what it purports to be, espe-
cially in light of Agent Orate's testimony that the 
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• 
-- F.3d --, 2008 WL 581218 (C.A.11 (Na.)) 
(Cite as: — F.3d —) 
certified copy of the birth certificate was identical 
to the birth certificate that Beverly showed him 
upon request. Consequently, Deverso cannot show 
error, let alone plain error, warranting a new trial 
due to the district court's admission of the birth cer-
tificate into evidence. 
B. Mistake of age jury instruction 
Deverso claims that the district court erred by 
refusing to give his mistake of age instruction as to 
Count Three. Deverso contends that knowledge of 
age is constitutionally mandated and because the 
Government charged that he did "knowingly" em-
ploy, use, persuade, entice, or coerce a minor to en-
gage in sexually explicit conduct outside of the 
United States for the purpose of producing a visual 
depiction of such conduct, he could raise mistake of 
age as a defense. The Government responds that the 
district court properly refused to give a mistake of 
age instruction. We agree. 
Pursuant to 18 U.S.C. § 2251(cX1), 
(ajny person who, in a circumstance described 
in paragraph (2), employs, uses, persuades, induces, 
entices, or coerces any minor to engage in, or who 
has a minor assist any other person to engage in, 
any sexually explicit conduct outside of the United 
States, its territories or possessions, for the purpose 
of producing any visual depiction of such conduct, 
shall be punished as provided under subsection (e). 
Id. 
Subsection (2) states that the circumstance re-
ferred to in paragraph (1) is that -
(A) the person intends such visual depiction to 
be transported to the United States, its territories or 
possessions, by any means, including by computer 
or mail; or 
(B) the person transports such visual depiction 
to the United States, its territories or possessions, 
by any means, including by computer or mail. 
18 U.S.C. § 2251(eX2). The statute sets the age 
of majority at 18. 18 U.S.C. § 2256(1). 
Page 5 of 7 
Page 5 
NN, 
Deverso first contends that he was entitled to a 
mistake of age defense jury instruction because 
knowledge of age is an element of the offense un-
der § 2251. We disagree and hold that knowledge 
of age As not an element of this offense. See United 
States I X-Citement Video, Inc., 513 U.S. 64, 76 & 
n.5, 115 S.Ct. 464 (1994) (concluding, although in 
dicta, that a mistake of age defense to 18 U.S.C. § 
2251 is not constitutionally mandated and citing a 
Senate Conference Committee Report explaining 
that the deletion of the word "knowingly" from § 
2251 reflected an intent to eliminate knowledge
age as an element of the crime); United States 
Griffith. 284 F.3d 338, 349 (2d Cir.2002) (rejecting 
defendants' argument that the district court's charge 
to the jury omitting scienter of age under § 2251 
was erroneous); United States' Johnson, 376 F.3d 
689, 693 (7th Cir.2004) (finding that because de-
fendant was charged with the attempt to manufac-
ture child pornography, the Government had to 
prove knowledge of the minor's age; however, com-
menting that if the defendant were charged with the 
commission of the completed offense under § 2251, 
tn
the Government would not have to prove 
ow-
ledge of the minor's age); United States 
U.S. 
Dist. Ct, 858 F.2d 534, 53841 (9th Cir.1988) 
(acknowledging that scienter as to age is not an ele-
ment of 18 U.S.C. § 2251); H.R.REP. NO. 99-910, 
at 6 (1986), reprinted in 1986 U.S.C.C.A.N. 5952, 
5956 (noting that under § 2251 the Government 
"need not prove that the defendant actually knew 
the person depicted was in fact under 18 years of 
age"). 
— 
Deverso also argues that he was entitled to a 
mistake of age jury instruction because it is consti-
tutionally mandated. He relies on United States 
District Court, 858 F.2d at 537-43, in which the 
Ninth Circuit engrafted a mistake of agc defense in-
to the statute after concluding that such a defense 
was required under the First Amendment although 
the statute did not have a scienter of age element. 
We reject Deverso's contention and hold that the 
Constitution does not mandate a mistake of age de-
fense under § 2251. See United States' Crow, 164 
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Page 6 of 7 
F.3d 
F.3d 
2008 WL 581218 (C.A.I1 (Fla.)) 
(Cite as: — F.3d —) 
F.3d 229, 236 (5th Cir.1999) (finding defendant's 
constitutirl challenge to § 2251 meritless);cf. 
c 
Gilmour 
Rogerson, 117 F.3d 368, 370-73 (8th 
Cir.1997) (considering Iowa statute similar to § 
2251 and concluding that the First Amendment 
does not mandate a mistake of age defense to the 
offense of sexual exploitation of a minor). Accord-
ingly, we reject Deverso's argument that the district 
court erred in its jury instruction on Count Three. 
FN2 
C. Motion for judgment of acquittal 
Deverso contends that the district court erred in 
denying his motion for judgment of acquittal on 
Count One, possession of materials containing child 
pornography. He argues that the evidence was in-
sufficient to support his conviction. Having re-
viewed the record, and taking the evidence in the 
light most favorable to the Government, see Dulcio, 
441 F.3d at 1276, we conclude that the evidence 
was more than sufficient to support Deverso's con-
viction on Count One. 
The evidence showed that after his arrest, De-
verso admitted to another inmate that the disks be-
longed to him but that he intended to put the blame 
on his son, and that he had had sex with underage 
girls while he was in the Philippines. Additionally. 
an investigator testified that some of the child por-
nography contained on one of the disks had been 
found under Deverso's password-protected account 
on the hard drive of his computer. The investigator 
also stated that some of the child pornography on 
the disks contained the same images he had seen in 
other child pornography investigations. Deverso's 
son testified that none of the computer stuff be-
longed to him and that his father's account was the 
only account that was password-protected. 
Although Deverso testified and denied any 
knowledge of the child pornography on the disks, 
the jury was free to disbelieve his testimony in light 
of the evidence to the contrary. Given the opportun-
ity to evaluate Deverso's demeanor and credibility, 
the jury was entitled not only to disbelieve his testi-
Page 6 
mony but, in fact, to find that the o 
site of his 
testimony was true. See United States 
Martinez, 
r
F.3d 371, 374-75 (11th Cir.1996); United States 
Brown, 53 F.3d 312, 314-15 (11th Cir.1995). 
us, Deverso's testimony in his own defense, 
coupled with the corroborative evidence of his 
i
guilt, s ports the jury's guilty verdict. See United 
States Williams, 390 F.3d 1319, 1326 (11th 
Cir.2 
("Where some corroborative evidence of 
guilt exists for the charged offense ... and the de-
fendant takes the stand in [his) own defense, the 
[d)efendant's testimony, denying guilt, may estab-
lish, by itself, elements of the offense."). Accord-
ingly, we conclude that the district court did not err 
in denying Deverso's motion for judgment of se-
quins! on Count One. 
I. CONCLUSION 
For the foregoing reasons, we drum Deverso's 
convictions. 
AFFIRMED. 
*Honorable Richard W. Goldberg, United 
States Court of International Trade Judge, 
sitting by designation. 
1. Deverso does not have a challenge with 
regard to the scienter instruction on Count 
Two because the district court gave a sci-
enter jury instruction on this count. (R. 
Vol.8, p. 709-10.) I
2. We note, moreover, that the Govern-
ment's inclusion of the word "knowingly" 
in the indictment was mere surplusage. 
Congress defines the elements of an of-
fense, not the charging document. Surplus-
age in an indictment may be deleted 
i
tshout any legal error. See United States 
Ward, 486 F.3d 1212, 1227 (11th 
r.2007), cert. 
denied,128 
S.Ct. 
398 
(2007). Furthermore, when the Govern-
ment 
explained 
that it had 
charged 
"knowingly" to mean only that Deverso 
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Page 7 
F.3d 
2008 WL 581218 (C.A.11 (Fla.)) 
(Cite as: — F-3d —) 
must have "knowingly produced the im-
ages, he knowingly took the pictures," De-
verso did not dispute that construction of 
Count Three, nor did he argue that he had 
relied on the language of the charge in fo -
mutating his defense. See United States 
Cancelliere, 69 F.3d 1116, 1121 (II 
Cir.1995) (noting exception to the general 
rule regarding surplusage in the indictment 
when a defendant rests his entire defense 
on an erroneously charged surplus ele- ment). 
C.A. 1,2008. 
U.S. I. Deverso 
F.3d 
2008 WL 581218 (C.A.11 (Fla.)) 
END OF DOCUMENT 
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EFTA00192218

FILED 
UNITED STATES DISTRICT COURT 
MIDDLE DISTRICT OF FLORIDA 
FORT MYERS DIVISION 
05 AUG 3I PM 2: I? 
UNITED STATES OF AMERICA 
v. 
CASE NO. 
2:S05-cr-34-FtM-29SPC 
18 USC §2251(cX2)(B) 
DONALD J. DEVERSO 
18 USC §2251(e) 
18 USC § 2252(aX1) 
18 USC § 2252(aX4)(B) 
18 USC § 2252(bX1) 
18 USC § 2252(b)(2) 
SECOND SUPERCEDING INDICTMENT 
The Grand Jury charges: 
COUNT ONE 
From a date unknown but by at least May 11, 2002, through on or about April 5, 
2005, in Lee County, Florida, in the Middle District of Florida, and elsewhere, the 
defendant, 
DONALD J. DEVERSO, 
did knowingly possess one or more matter(s) which contain a visual depiction that had 
been transported in interstate and foreign commerce, and which had been produced 
using materials which had been transported, by any means including by computer, 
where the production of such visual depiction involved the use of a minor engaging in 
sexually explicit conduct, and such visual depiction is of such conduct. 
In violation of Title 18, United States Code, Sections 2252(a)(4)(8) and 
2252(b)(2). 
EFTA00192219

COUNT TWO 
On or about October 20, 2004, in Lee County, in the Middle District of Florida, 
and elsewhere, the defendant, 
DONALD J. DEVERSO, 
did knowingly transport and ship in interstate and foreign commerce, by any means, 
including by computer, a visual depiction, the production of which involved the use of a 
minor engaging in sexually explicit conduct, and such visual depiction is of such 
conduct. 
In violation of Title 18, United States Code, Sections 2252(a)(1) and 
2252(b)(1). 
COUNT THREE 
Between October 15, 2004, through on or about October 17, 2004, in Lee 
County, in the Middle District of Florida, and the Philippines, the defendant, 
DONALD J. DEVERSO, 
did knowingly employ, use, persuade, induce, entice, or coerce a minor to 
engage in sexually explicit conduct outside of the United States for the purpose of 
producing a visual depiction of such conduct, and did transport such visual depiction 
to the United States by any means, including by computer, and which visual 
depiction had actually been transported in interstate and foreign commerce and mail. 
In violation of Title 18, United States Code, Section 2251(c)(2)(B) and 2251(e). 
2 
EFTA00192220

FORFEITURE
1. 
The allegations contained in Counts One through Three, of this Second 
Superceding Indictment are hereby realleged and incorporated by 
reference for the purpose of alleging forfeitures pursuant to the provision 
of Title 18, United States Code, Section 2253. 
2. 
The defendant, Donald J. Deverso, shall forfeit to the United States of 
America, any visual depiction described in section 2251, 2251A, or 2252 
of this chapter, or any book, magazine, periodical, film, videotape, or other 
matter which contains any such visual depiction, which was produced, 
transported, mailed, shipped or received in violation of this chapter; any 
property, real or personal, constituting or traceable to gross profits or 
other proceeds obtained from such offense; and any property, real or 
personal, used or intended to be used to commit or to promote the 
commission of offense. 
3. 
If any of the property described above, as a result of any act or omission 
of the defendant: 
a. 
cannot be located upon the exercise of due diligence; 
b. 
has been transferred or sold to, or deposited with, a third party; 
c. 
has been placed beyond the jurisdiction of the court; 
d. 
has been substantially diminished in value; or 
e. 
has been commingled with other property which cannot be divided 
without difficulty, 
3 
EFTA00192221

the United States of America shall be entitled to forfeiture of substitute property under 
the provision of Title 18, United States Code, Section 2253(o). 
A TRUE BILL, 
E•31-0i
Date 
By: 
By: 
PAUL I. PEREZ 
United States Attorney 
Nolande G. Viacava 
Assistant United States Attorney 
Trial Counsel 
ert P. 
r ift 
Assistant Uni 
States Attorney 
Asset Forfeiture 
>
gel*
Assistant United States Attorney 
Chief, Fort Myers Division 
o loy 
N %Snaltal 
Dorald_205R01005sAf idiostat Jed:4p rms is  
4 
Cho 44AO inattiyy 
Foreperso0 
EFTA00192222

FORM 080.34 APR 1991 
UNITED STATES DISTRICT COURT 
Middle District of Florida 
Fort Myers Division 
THE UNITED STATES OF AMERICA 
vs. 
DONALD J. DEVERSO 
SECOND SS INDICTMENT 
Violations: 
Title 18, United States Code, Sections 2251(cX2)(B), 2251(e), 2252(a)(1), 
2252(aX4)(B), 2252(bX1), and 2252(b)(2). 
A true bill 
Tr). -YY)ce3a-7( 
Fore erson 
Filed in open court this 31st day 
of August, A.D. 2005. 
Clerk 
Bail $ 
coo 863 525 
EFTA00192223

UNITED STATES DISTRICT COURT 
MIDDLE DISTRICT OF FLORIDA 
FORT MYERS DIVISION 
UNITED STATES OF AMERICA 
v. 
DONALD J. DEVERSO 
CASE NO. 
2:S05-cr-34-FtM-29SPC 
GOVERNMENT'S NOTICE OF INTENT TO INTRODUCE 
EVIDENCE UNDER FED. R. EVID. 4041b1 
The United States of America, by Paul I. Perez, United States Attorney for the 
Middle District of Florida, notifies this Honorable Court and all counsel that it intends to 
introduce evidence, pursuant to Fed. R. Evid. 404(b), of other crimes, wrongs or acts 
the defendants committed before, during, and after the dates of the offenses alleged in 
the Indictment. 
1. 
The Government will present evidence that the defendant took numerous 
trips to various countries to engage in sexual intercourse with minors. The defendant 
made these trips to Asian countries, according to passport records and statements of 
the defendant. 
2. 
The Government will present evidence that the defendant had numerous 
e-mail "relationships" with a number of women, both of age and under age. The 
Government will present evidence that the defendant convinced these women and girls 
that they were his "fiancee. These women and girls include Chona Rama, a young 
Filipino girl, Beverly Datanagen, and others. The e-mail addresses include: daintygirl; 
jeandj2005; marychel; arbieanoba; honeygirl; toughgirl; promise of love; cudlyshane; 
and others. The Government will present computer print-out evidence of the e-mails 
EFTA00192224

from the defendant that the defendant demanded sex from the women and girls in each 
of these "relationships" before marriage, so that: "I can be sure the marriage is a good 
one". There were no real "fiances"; the defendant was married and attempting to have 
sex with underage women. 
3. 
The Government will present evidence the defendant showed member(s) 
of his family pictures of young girls upon returning from various trips out of the country, 
declaring he had sex with these underage women. The defendant stated he "purchased 
these girls for a bachelor party I threw myself'. The defendant showed member(s) of 
his family a CD containing bestiality. 
4. 
The Govemment will present evidence the defendant frequently visited 
on-line sites: www.Dorohilez.com; www.asianteen.orq; www.asiangirls.com; 
www.freesexasia.com; and www.asianexoloitedteen.com. 
5. 
The Govemment will present evidence member(s) of the defendant's 
family saw him viewing child pornography in the defendant's home from January 2003 
up to and including this year. The defendant showed member(s) of his family child 
pornography, telling member(s) of his family when abroad he could have sex with "a girl 
of any age". 
2 
EFTA00192225

6. 
The Government will present evidence the defendant maintains a storage 
facility in New York which contains downloaded child pornography. 
Respectfully submitted, 
PAUL I. PEREZ 
United States Attorney 
By: s/Douglas Molloy 
DOUGLAS MOLLOY 
Assistant United States Attorney 
Florida Bar No. 0316716 
2110 First Street, Suite 3-137 
Fort Myers, Florida 33901 
Phone: (239) 461-2200 
Fax: (239) 461-2219 
E-Mail: [email protected] 
3 
EFTA00192226