NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
JANE B. STRANCH, Circuit Judge.
Following a bench trial, Larun E. Miller was convicted of various sex crimes. He timely appeals, challenging the district court's refusal to dismiss the indictment, denial of his Rule 29 motion based on insufficient evidence, and denial of his motion to suppress certain statements. For the reasons discussed below, we
Miller was required to register as a sex offender, and to re-register within three days of changing residency. On each of his registration dates, July 18, 2013, October 16, 2013, January 14, 2014, and April 14, 2014, Miller provided the same address, a men's shelter in Cleveland. On June 3, 2014, Detective Susan Dechant informed Inspector Brian Fitzgibbon that Miller had not resided at the shelter since September 2013.
During this time frame, an investigation was ongoing in Colorado concerning Miller's online activity. Miller, using the screenname "seekingyounger75," had been chatting online with a person he believed to be a 14-year old girl. In reality, Michael Harris and Cassandra Harris, investigators with the Jefferson County District Attorney's Office, were portraying the teen.
There was frequent communication between the pair for several days. However, on May 31, 2014, Miller stopped responding to messages. The minor left voicemail messages for Miller at 9:31 a.m. and 10:16 a.m. on the morning of May 31. Miller responded with a text message at 1:59 p.m. The minor then sent text messages at 5:26, 7:05, 7:37, and 9:18 p.m. that day, and received no response. At 1:54 a.m. on June 1, 2014, the minor again texted Miller stating, "Okay. Fuck this, huh? Good-bye." After again receiving no response from Miller, the minor sent the following email:
Miller texted Harris at 4:28 a.m.: "Hey sorry stopped in Indiana and fell asleep just bought a charger," and again at 6:02 a.m.: "hey I got your email quit it I'm not like everybody else." Miller then called the minor on June 1 at 6:09 a.m. The parties disagreed about whether the minor's threatening e-mail was sent before or after Miller texted Harris at 4:28 a.m., however the district court determined that the e-mail was sent before, at 4:12 a.m.
Although he had not left Ohio, Miller then told the minor that he was driving and was already in Indiana, "three hundred miles from home." The two continued to communicate by text message until Miller was arrested on June 3, 2014. Miller admitted that he was no longer residing at the address he used on his registration form. He indicated that he wanted to give a statement and was interviewed by Deputy William Boldin and Task Force Officer Don Dondrea after being given his Miranda rights.
The opinion of the district court set out the interview statements at issue. At 9:52 a.m., Miller stated that "I gon' prefer not to answer any more questions, then." The officers suggested that he could "see what this stonewalling does" to which Miller replied, "OK. Well, before we go any further can I go use the bathroom?" and indicated that he would "give  strong consideration" to answering more questions. He was provided a bathroom break at 9:53 a.m., and returned to the interrogation room by 9:58 a.m. where he continued to answer questions. Miller responding to a question at 10:03 a.m. with "no comment" and at 10:04 a.m., stated: "I can only say this. I can't talk anymore, I really can't. I mean, right now I feel like I'm on the edge, I can't comment any further." The interrogation went on until 10:17 a.m., with Miller repeatedly saying he did not want to continue. At the suppression hearing, Miller argued that he unequivocally invoked his right to silence at 9:52 a.m., but the court determined that Miller invoked it at 10:04 a.m., and suppressed all statements made after that time.
Miller was charged with: 1) using a facility of interstate commerce to entice a minor to engage in illegal sexual activity, and attempting to do so, in violation of 18 U.S.C. § 2422(b); 2) enticing a minor to engage in sexually explicit conduct for purposes of creating a visual depiction of that conduct, and attempting to do so, in violation of 18 U.S.C. § 2251(a) and (e); 3) failing to register as a sex offender, in violation of 18 U.S.C. § 2250(a), (c); and 4) committing a felony sex offense against a minor while being required to register as a sex offender, in violation of 18 U.S.C. § 2260A. (R. 35: Superseding Indictment, PageID 159-61). He entered a plea of not guilty, waived his right to a jury trial, and proceeded to a bench trial. At the close of the Government's case, Miller moved for a judgment of acquittal, which was denied. The district court entered a guilty verdict on all counts and Miller filed a timely appeal.
A. Outrageous government conduct
Miller first argues that the trial court erred in denying his motion to dismiss the indictment based on the government agents' outrageous conduct. In examining the denial of a motion to dismiss an indictment for outrageous government conduct, this court reviews the district court's conclusions of law de novo. United States v. Amawi, 695 F.3d 457, 483 (6th Cir. 2012).
Miller argues that he had cut off communication with the minor, but by sending an e-mail with a suicide threat, the agents preyed on Miller's emotions, causing him to resume communications that he had ceased. He further argues that any statements he made that could be interpreted to constitute a "substantial step" occurred after he received that e-mail.
Faking a suicide threat to induce someone to resume communications during a sting operation is a concerning tactic for police officers to employ. However, regardless of the propriety of the government action in this case, the Sixth Circuit has not adopted the outrageous government conduct defense. In United States v. Tucker, 28 F.3d 1420, 1426-27 (6th Cir. 1994), the court stated that there is no authority in this circuit holding that the "government's conduct in inducing the commission of a crime, if `outrageous' enough, can bar prosecution of an otherwise predisposed defendant under the Due Process Clause of the Fifth Amendment." Id. at 1424. The court "reject[ed] as a matter of law the theory upon which the defendants based their motion to dismiss" without reaching the facts. Id. at 1428; see also United States v. Warwick, 167 F.3d 965, 974 (6th Cir. 1999) ("[W]e have consistently rejected defendants' attempts to argue that the government's conduct in inducing them to commit the crimes charged was so outrageous as to deprive them of their constitutional rights."). We therefore affirm the district court's denial of the motion to dismiss the indictment.
B. Sufficiency of the evidence
Miller argues that there was insufficient evidence to support his convictions under Counts 1 and 2. We review de novo the district court's denial of Miller's motion for judgment of acquittal challenging the sufficiency of the evidence. United States v. Tocco, 200 F.3d 401, 424 (6th Cir. 2000). We view the evidence in the light most favorable to the government and then consider whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). "Even when a defendant is convicted after a bench trial, the test is `whether the evidence is sufficient to justify the trial judge, as trier of facts, in concluding beyond a reasonable doubt that the defendant was guilty.'" United States. v. Bashaw, 982 F.2d 168, 171 (6th Cir. 1992) (citing United States v. Niver, 689 F.2d 520, 529 (5th Cir. 1982)).
1. Violation of 18 U.S.C. § 2422(b)
The statute at issue, 18 U.S.C. § 2422(b) reads:
The elements of this crime are that: (1) Miller used interstate commerce in an attempt to knowingly persuade an individual under the age of 18 to engage in sexual activity; (2) that Miller believed the person was under 18; and (3) that if sexual activity had occurred, Miller could have been charged with a criminal offense under state law. United States v. Hart, 635 F.3d 850, 855 (6th Cir. 2011).
In finding Miller guilty on Count 1, the district court made the following findings:
(R. 61, at PageID# 589) (citations removed).
Miller argues that he did not persuade, induce, entice, or coerce the minor to "do anything she wasn't already holding herself out as ready, willing and able to do." However, as the district court found, the evidence showed that Miller attempted to persuade, induce, entice, and/or coerce the minor into taking part in certain sexual activities with him in which she had refused to engage. His comments and descriptions are sufficient to sustain his conviction.
2. Violation of 18 U.S.C. § 2251(a) and (e)
Miller next argues that there was insufficient evidence to support his conviction for Count 2 and that Miller did not take a substantial step toward the commission of the offense.
The statute at issue, 18 U.S.C. § 2251(a) reads:
Subsection (e) criminalizes "[a]ny individual who violates, or attempts or conspires to violate" section (a). The Government must show that Miller intended to create child pornography and that he took a substantial step towards creating it. United States v. Sims, 708 F.3d 832, 835 (6th Cir. 2013).
Relative to the substantial step, the district court found:
(R. 61 at PageID# 595) (citations removed).
As the district court found, Miller repeatedly asked the minor to take pictures of herself to send to him, offered to send her a camera, instructed her to find the camera that her mother had in the house, and discussed filming their sex acts. Viewed in the light most favorable to the prosecution, there was sufficient evidence supporting Miller's conviction for violation of § 2251.
C. Motion to suppress statements
Finally, Miller argues that the district court should have suppressed statements he made during an interrogation starting at 9:52 a.m., not at 10:04 a.m. The denial of a motion to suppress is reviewed de novo. United States v. Harris, 192 F.3d 580, 584 (6th Cir. 1999).
When a suspect in custody requests a lawyer, interrogation must cease until a lawyer is provided, unless the suspect "initiates further communication, exchanges, or conversations with the police." Edwards v. Arizona, 451 U.S. 477, 485 (1981). This is "designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights." Michigan v. Harvey, 494 U.S. 344, 350 (1990). To determine whether a custodial statement is improper, a court must first determine whether the suspect unambiguously invoked his right to counsel. Smith v. Illinois, 469 U.S. 91, 95(1984). "[I]f a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning." Davis v. United States, 512 U.S. 452, 459 (1994). "Although a suspect need not `speak with the discrimination of an Oxford don,' he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." Id. (citation omitted). If the statement "fails to meet the requisite level of clarity," officers are not required to stop questioning the suspect. Id. "[I]f the accused invoked his right to counsel, courts may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked." Smith, 469 U.S. at 95.
The district court found that, in the context of the interrogation, Miller's statement that he preferred not to answer any more questions was in line with previous responses he had made when he chose not to answer particular questions while still continuing the interrogation. It also noted that Miller asked if he could go to the restroom "before we go any farther." We agree with the district court's conclusion that the circumstances could have lead a reasonable officer to conclude that the defendant was not unequivocally ending the interview at 9:52 a.m. Thus, we affirm the district court's suppression of statements occurring after 10:04 a.m., as opposed to at an earlier time.
For the foregoing reasons, we