IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-50470

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

DANIEL NICKLESS,

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 7:13-CR-301

Before SMITH, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

Daniel Nickless was convicted by a jury of using a facility of interstate 

commerce to knowingly attempt to persuade, induce, entice, or coerce an 

individual, under the age of 18, to engage in illegal sexual activity in Texas, in 

violation of 18 U.S.C. § 2422(b). He was sentenced to, inter alia, 120 months’ 

imprisonment. His three issues on appeal fail. 

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5th Cir. 

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

April 14, 2015

Lyle W. Cayce

Clerk

 

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No. 14-50470

In challenging the sufficiency of the evidence supporting his conviction, 

Nickless claims the Government presented no evidence that he enticed or 

induced the purported juvenile (a Government agent) into engaging in sexual 

activity. According to Nickless, the Government did the enticing by placing a 

personal advertisement on Craigslist, encouraging an earlier meeting than 

Nickless had proposed, and suggesting he bring condoms to the encounter. In 

addition, regarding one of the elements for a conviction under § 2422(b), 

Nickless maintains there was no evidence that he could have been convicted of 

an offense under state (Texas) law. 

For, as in this instance, a properly preserved sufficiency-of-the-evidence 

challenge, the “evidence, whether circumstantial or direct, [is viewed] in the 

light most favorable to the Government with all reasonable inferences to be 

made in support of the jury’s verdict”. United States v. Moser, 123 F.3d 813, 

819 (5th Cir. 1997) (citation omitted). After reviewing the testimony regarding 

the emails, photographs, and text messages sent between Nickless and a 

Government agent portraying himself as a 16-year-old female, a reasonable 

juror could have found that Nickless attempted to entice an underage person 

into illegal sexual activity, in violation of § 2422(b). See, e.g., United States v. 

Lundy, 676 F.3d 444, 449–50 (5th Cir. 2012); United States v. Farner, 251 F.3d 

510, 512–13 (5th Cir. 2001).

Nickless next claims the district court erred by failing to instruct the jury 

on the lesser-included offense of transferring obscene material to a minor, 18 

U.S.C. § 1470. Because Nickless never requested such an instruction in district 

court, his claim is reviewed only for plain error. E.g., United States v. 

Hernandez-Martinez, 485 F.3d 270, 272–73 (5th Cir. 2007); United States v. 

Mays, 466 F.3d 335, 342 (5th Cir. 2006) (citation omitted). Under that 

standard, he must show a forfeited plain (clear or obvious) error that affected 

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his substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If 

he does so, we have the discretion to correct the error, but should do so only if 

it seriously affects the fairness, integrity, or public reputation of the 

proceedings. Id.

A conviction under § 1470 requires proof of elements that are not 

required for a conviction under § 2422(b). Compare United States v. Rounds, 

749 F.3d 326, 333 (5th Cir. 2014) (§ 2422(b) elements) with United States v. 

Rudzavice, 586 F.3d 310, 313 (5th Cir. 2009) (§ 1470 elements). Nickless fails 

to show clear or obvious error arising from the district court’s not instructing

the jury as to this statute. E.g., United States v. Avants, 367 F.3d 433, 450 (5th 

Cir. 2004).

Last, Nickless contends the court abused its discretion in denying his 

motion to set aside the jury verdict and for a new trial in the light of some 

jurors allegedly having been confused about their ability to persist in a notguilty vote. Along that line, Nickless claims the district court erred in not 

allowing one of the allegedly confused jurors to testify in support of the motion. 

A juror may not testify or present affidavit evidence of events occurring during 

deliberations or the juror’s mental processes, although a juror may testify 

about the introduction of extraneous prejudicial information or about an 

outside influence that was improperly brought to bear on a juror. Fed. R. Evid.

606(b)(1), (2)(A)–(B). Confusion over the jury instructions does not constitute 

such an external influence. United States v. Jones, 132 F.3d 232, 245–46 (5th 

Cir. 1998) (citation omitted). Nickless has, therefore, not established that the 

district court abused its discretion in denying his post-verdict motion.

AFFIRMED.

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