FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

March 5, 2008

THOMAS K. KAHN

CLERK

 [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 06-16048

 

D. C. Docket No. 05-00034 CR-FTM-29-SPC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DONALD J. DEVERSO,

Defendant-Appellant.

 

Appeal from the United States District Court

for the Middle District of Florida

 

(March 5, 2008)

Before DUBINA and KRAVITCH, Circuit Judges, and GOLDBERG,* Judge.

DUBINA, Circuit Judge:

_________________________

*Honorable Richard W. Goldberg, United States Court of International Trade Judge,

sitting by designation.
Deverso does not have a challenge with regard to the scienter instruction on Count Two 1

because the district court gave a scienter jury instruction on this count. (R. Vol. 8, p. 709-10.)

2

Appellant Donald J. Deverso (“Deverso”) appeals his convictions for

possessing materials involving a depiction of a minor engaged in sexually explicit

activity, in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2) (Count One);

transporting materials involving a depiction of a minor engaged in sexually

explicit activity, in violation of 18 U.S.C. § 2252(a)(1) and (b)(1) (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(c)(2)(B) 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, reading the

parties’ briefs, and having the benefit of oral argument, we conclude that the

Government properly 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
3

The Government presented the following evidence 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

investigators interviewed Deverso’s wife, Zong Yu Deverso (“Mrs. Deverso”). 

Mrs. Deverso turned over to investigators various computer media and printouts

that she surreptitiously obtained from Deverso. Deverso was in some of the

pictures that depicted young girls in various stages of undress. Investigators

discovered that one of the girls in the pictures was Beverly Datanagan (“Beverly”).

During a subsequent search of Deverso’s residence pursuant to a valid

search warrant, investigators found compact and floppy disks, computer

components, and a computer. Deverso originally set up his computer in a small

room or closet that the family used for a nursery. It was the only computer with

internet access, and Deverso’s account was the only account that was password

protected. Investigators reviewed the compact disks seized from Deverso’s

residence and discovered two disks, entitled MM Texas and Asians 7, that

contained child pornography. One of the investigators testified that he had seen

some of the images on the compact disks in other child pornography

investigations. 
4

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 Deverso admitted that the disks belonged to him but that he intended to shift

the blame to his son, who 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. Vol. 6, p. 429.)

Investigators also testified that they found Beverly’s name on the back of

one of the digital images 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 October 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

certificate 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 exactly 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
5

Government proffered the document as evidence that Beverly was a minor at the

time Deverso 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 Deverso 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 motions. 

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; instead,

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 alcoholic drinks. Deverso stated that he sent Beverly

money for her 19th, not 18th, birthday. Deverso also denied telling his fellow
6

inmate anything about his travels or having sex with minors. He commented that

his testimony was the truth. 

 During the charge conference, Deverso objected to an instruction that “the

defendant’s awareness of the age of the minor is not an element of the offense,”

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 concluded that

because knowledge of age is not an element 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 Evidence

902(3).
7

2. Whether the district court abused its discretion 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.

III. STANDARDS OF REVIEW

We review for abuse of discretion the district court’s admission of evidence. 

See United States v. Maragh, 174 F.3d 1202, 1204 (11th Cir. 1999). If the

defendant fails to object at trial to the admission of evidence, the court reviews the

district court’s ruling for plain error only. United States v. Baker, 432 F.3d 1189,

1202 (11th Cir. 2005). “Where an appellant has objected to a jury instruction at

trial, we review the court’s decision to use that instruction for abuse of discretion.” 

United States v. Dean, 487 F.3d 840, 847 (11th Cir. 2007), petition for 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 sufficiency of

the evidence de novo.” United States v. Dulcio, 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]overnment

and draw all reasonable factual inferences in favor of the jury’s verdict.” Id.

IV. DISCUSSION
8

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 encounter. First, he claims that the birth certificate

is a business record, and the Government did not lay a proper foundation for its

admission. See 28 U.S.C. § 1732 (governing admission of business records into

evidence). Second, Deverso contends that the Government did not authenticate

the birth certificate, and the document did not bear the required indicia of

reliability. He claims that while the birth certificate may have been attested to by

an appropriate individual 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 Indices for birth.” (R. Exhibit No.

5.) Thus, Deverso argues that the document is not what the Government claims it

to be – a birth certificate – but is, instead, 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 original or
9

certified copy of the original does not have a signature under the heading

“Certificate of Attendant 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 obtain relief, Deverso

must demonstrate plain error warranting relief. See United States v. 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 (1) error, (2) that is plain, and (3)

that affect[s] substantial rights . . . [and] (4) . . . seriously affect[s] the fairness,

integrity, or public reputation of judicial proceedings.” (quoting Johnson v. United

States, 520 U.S. 461, 466-67, 117 S. Ct. 1544, 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 condition 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 chain of

certificates of genuineness of signature and official position relating

to the execution or attestation. A final certification may be made by a
10

secretary of an embassy or legation, consul general, consul, 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 accuracy of official documents, the

court may, for good cause shown, order that they be treated as

presumptively authentic without final certification or permit them to

be evidenced by an attested summary with or without final

certification.

FED. R. EVID. 902(3).

There is no requirement in Rule 902(3) that the document itself be signed. 

See United States v. Squillacote, 221 F.3d 542, 562 (4th Cir. 2000). “The rules are

written in the alternative – foreign documents may be authenticated by a

certification from the official executing the document or by an official attesting to

the document.” Id. 

There are two requirements for the authentication of a foreign document. 

“First, there must be some indication that the document is what is purports to be. 

Thus, the proffered document must be executed by a proper official in his official

capacity, or the genuineness of the document must be attested to by a proper

official in his official capacity.” Id.; see also United States v. Doyle, 130 F.3d

523, 545 (2d Cir. 1997) (noting that the rule is not concerned with establishing the

truth 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
11

be some indication 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 final certification attesting to the

genuineness of signature and title of the person executing or attesting to the

document, or of another official who has certified the signature and position of the

person executing or attesting to the document.” Id.

The Government met these requirements here. The Government established

that Agent Orate requested and obtained a copy of Beverly’s birth certificate from

the Philippine National Census and Statistics Office and that he had the copy

authenticated 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 record authorized

by the law of the Philippines to be reported and recorded in the National Census

and Statistics Office. That certification was accompanied by a final 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 II, National Statistics Office, Quezon City, Republic of the
12

Philippines.” Because the Government met the requirements for selfauthentication of the foreign document, it did not have to lay a foundation for

admission of the document as a business record. See FED. R. EVID. 902, advisory

committee note to para. (3) (stating that this paragraph “provides a method for

extending the presumption of authenticity to foreign official documents by a

procedure of certification”).

Furthermore, to the extent that Deverso challenges 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 evidence, not its admissibility on grounds of authenticity. See, e.g., Doyle, 130

F.3d at 545 (“[T]he official does not need to attest to the truth or trustworthiness

of the facts contained in the document; accuracy of its contents is the concern of

other Federal Rules.”). Deverso fails to establish that Beverly’s birth certificate is

not what it purports to be, especially in light of Agent Orate’s testimony that the

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 certificate into evidence.

B. Mistake of age jury instruction
13

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” employ, use, persuade, 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, 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(c)(1),

[a]ny 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 referred 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
14

(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(c)(2). The statute sets the age of majority at 18. 18 U.S.C. §

2256(1).

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 under § 2251. 

We disagree and hold that knowledge of age is not an element of this offense. See

United States v. 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 of age as an element of the crime); United States

v. 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 v. Johnson, 376 F.3d 689, 693 (7th Cir. 2004) (finding

that because defendant was charged with the attempt to manufacture child

pornography, the Government had to prove knowledge of the minor’s age;

however, commenting that if the defendant were charged with the commission of

the completed offense under § 2251, the Government would not have to prove
15

knowledge of the minor’s age); United States v. U.S. Dist. Ct., 858 F.2d 534, 538-

41 (9th Cir. 1988) (acknowledging that scienter as to age is not an element 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 constitutionally mandated. He relies on United States District Court,

858 F.2d at 537-43, in which the Ninth Circuit engrafted a mistake of age defense

into 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 defense under § 2251. See United States v. Crow, 164 F.3d 229, 236 (5th Cir.

1999) (finding defendant’s constitutional challenge to § 2251 meritless); cf.

Gilmour v. 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).
 We note, moreover, that the Government’s inclusion of the word “knowingly” in the 2

indictment was mere surplusage. Congress defines the elements of an offense, not the charging

document. Surplusage in an indictment may be deleted without any legal error. See United States

v. Ward, 486 F.3d 1212, 1227 (11th Cir.2007), cert. denied, 128 S. Ct. 398 (2007). Furthermore,

when the Government explained that it had charged “knowingly” to mean only that Deverso must

have “knowingly produced the images, he knowingly took the pictures,” Deverso did not dispute that

construction of Count Three, nor did he argue that he had relied on the language of the charge in

formulating his defense. See United States v. Cancelliere, 69 F.3d 1116, 1121 (11th 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 element).

16

 Accordingly, we reject Deverso’s argument that the district court erred in its jury

instruction on Count Three.2

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 insufficient to support his

conviction. Having reviewed 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 conviction on Count One.

The evidence showed that after his arrest, Deverso admitted to another

inmate that the disks belonged 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 pornography

contained on one of the disks had been found under Deverso’s password-protected
17

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 belonged 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 opportunity to evaluate Deverso’s

demeanor and credibility, the jury was entitled not only to disbelieve his testimony

but, in fact, to find that the opposite of his testimony was true. See United States

v. Martinez, 83 F.3d 371, 374-75 (11th Cir. 1996); United States v. Brown, 53

F.3d 312, 314-15 (11th Cir. 1995). Thus, Deverso’s testimony in his own defense,

coupled with the corroborative evidence of his guilt, supports the jury’s guilty

verdict. See United States v. Williams, 390 F.3d 1319, 1326 (11th Cir. 2004)

(“Where some corroborative evidence of guilt exists for the charged offense . . .

and the defendant takes the stand in [his] own defense, the [d]efendant’s

testimony, denying guilt, may establish, by itself, elements of the offense.”). 

Accordingly, we conclude that the district court did not err in denying Deverso’s

motion for judgment of acquittal on Count One.
18

V. CONCLUSION

For the foregoing reasons, we affirm Deverso’s convictions.

AFFIRMED.