United States v. Stephen Edmund Bolen, Jr. , 136 F. App'x 325 ( 2005 )


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  •                                                             [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FILED
    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
    ________________________  ELEVENTH CIRCUIT
    JUNE 23, 2005
    No. 04-13726                 THOMAS K. KAHN
    Non-Argument Calendar                CLERK
    ________________________
    D.C. Docket No. 03-00588-CR-1-1
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    STEPHEN EDMUND BOLEN, JR.,
    Defendant-Appellant.
    __________________________
    Appeal from the United States District Court
    for the Northern District of Georgia
    _________________________
    (June 23, 2005)
    Before ANDERSON, BIRCH and BARKETT, Circuit Judges.
    PER CURIAM:
    Stephen Edmund Bolen, Jr. appeals his conviction and 110-month sentence
    for using a facility and means of interstate commerce for enticement to commit
    child molestation, in violation of 
    18 U.S.C. § 2422
    (b). Bolen and the government
    stipulated to certain facts: (1) Special Agent Nikki Badolato of the Federal
    Bureau of Investigation (“FBI”) used a computer connected to the Internet in an
    undercover capacity, posing as a 25-year-old single mother named “Paulina” with
    a 3-year-old daughter named “Rachel,” (2) Special Agent Badolato was in an
    internet chat room titled “sex with younger” when Bolen contacted her via instant
    message, (3) Bolen and Special Agent Badolato engaged in an internet chat that
    took place over a number of days, (4) Bolen and Special Agent Badolato
    communicated by telephone and finalized their plans to meet, and (5) Bolen had
    contact only with an undercover officer posing as an adult and no contact with a
    minor or with an undercover officer posing as a minor. The government and
    Bolen entered into a written plea agreement, in which Bolen conceded in the
    agreement that he was guilty of the crime charged in the indictment and waived
    his right to appeal his sentence and the right to collaterally attack his sentence in
    any post-conviction proceeding on any ground, except that Bolen reserved the
    right to appeal any upward departure and the adverse determinations of his
    motions to suppress evidence and dismiss the indictment.
    On appeal, Bolen’s primary argument is that § 2422(b) does not prohibit an
    individual from arranging to have sex with a minor through communications with
    2
    an adult intermediary, as opposed to direct communications with a minor. Bolen
    also argues that § 2422(b) does not prohibit an individual from arranging to have
    sex with a fictitious minor. Bolen argues that if the statute is interpreted as
    prohibiting such activities it is unconstitutionally vague.
    The interpretation of § 2422(b) is a question of law subject to de novo
    review. See United States v. Murrell, 
    368 F.3d 1283
    , 1285 (11th Cir. 2004).
    Section 2422(b) provides in relevant part as follows:
    Whoever, using . . . any facility or means of interstate . . . commerce, . . .
    knowingly persuades, induces, entices, or coerces any individual who has
    not attained the age of 18 years, to engage in . . . any sexual activity for
    which any person can be charged with a criminal offense, or attempts to do
    so, shall be . . . imprisoned not less than 5 years and not more than 30 years.
    18 U.S.C. 2422(b).
    We have recently held that “direct communication with a minor or supposed
    minor is unnecessary under the text of § 2422(b).” Murrell, 
    368 F.3d at 1288
    (11th Cir. 2004) (affirming a conviction under § 2422(b) where the defendant used
    the internet to communicate with an undercover agent posing as an adult
    intermediary who would arrange for the defendant to engage in various unlawful
    sexual activities with a minor). We held that § 2422(b) encompasses conduct
    where a defendant arranges to have sex with a minor through communications
    with an adult intermediary, including an adult law enforcement agent posing as a
    3
    parent of a minor child. Id. at 1286; see also United States v. Hornaday, 
    392 F.3d 1306
    , 1310 (11th Cir. 2004) (stating that, in Murrell, we held that the use of an
    adult intermediary, such as an adult law enforcement agent posing as a parent of a
    minor child, does not take a defendant’s actions outside the prohibitions of
    § 2422(b)). In Murrell, we reasoned that, in such a situation, by negotiating with
    the purported parent of a minor, the defendant attempts “to stimulate or cause the
    minor to engage in sexual activity with him,” thereby bringing the defendant’s
    conduct within the definition of “induce.” Id. at 1287. We have also recently held
    that any argument that § 2422(b) is “void for vagueness insofar as adult
    intermediary situations are concerned cannot be reconciled with Murrell’s holding
    that the plain language of § 2422(b) clearly applies to those situations.”
    Hornaday, 
    392 F.3d at 1310
    .
    Here, Bolen’s arguments, that § 2422(b) does not prohibit an individual
    from arranging to have sex with a minor through communications with an adult
    intermediary or from arranging to have sex with a fictitious minor, are without
    merit. This argument has been explicitly rejected in cases that were factually
    indistinguishable. See Murrell, 
    368 F.3d at 1286
    ; Hornaday, 
    392 F.3d at 1310
    .
    Further, we have held that § 2422, as so interpreted, is not unconstitutionally
    vague. See Hornaday, 
    392 F.3d at 1310
    .
    4
    Bolen next argues on appeal that the district court erred in dismissing his
    motion to suppress evidence because the police officers did not have probable
    cause to arrest him and conduct a warrantless search incident to arrest. Bolen
    bases this argument on the fact that the government and Bolen stipulated that
    Bolen had no contact with a minor or with an undercover officer posing as a
    minor, contending that, as such, he could not exercise undue influence over a
    minor within the plain meaning of § 2422(b).
    “This court reviews a district court’s denial of a defendant’s motion to
    suppress under a mixed standard of review, reviewing the district court’s findings
    of fact under the clearly erroneous standard and the district court’s application of
    law to those facts de novo.” United States v. Desir, 
    257 F.3d 1233
    , 1235-36 (11th
    Cir. 2001).
    “Under the Fourth and Fourteenth Amendments, an arresting officer may,
    without a warrant, search a person validly arrested.” Michigan v. DeFillippo, 
    443 U.S. 31
    , 35, 
    99 S.Ct. 2627
    , 2631 (1979). “[T]he Constitution permits an officer to
    arrest a suspect without a warrant if there is probable cause to believe that the
    suspect has committed or is committing an offense.” 
    Id. at 36
    , 
    99 S.Ct. at 2631
    .
    “‘A law enforcement officer has probable cause to arrest a suspect if the facts and
    circumstances within the officer’s knowledge, of which he or she has reasonably
    5
    trustworthy information, would cause a prudent person to believe, under the
    circumstances shown, that the suspect has committed, is committing, or is about to
    commit an offense.’” Williamson v. Mills, 
    65 F.3d 155
    , 158 (11th Cir. 1995)
    (quoting Von Stein v. Brescher, 
    904 F.2d 572
    , 578 (11th Cir. 1990)).
    Section 2422(b) prohibits, in relevant part, individuals from using any
    facility of interstate commerce from attempting to induce any minor child to
    engage in any sexual activity for which any person can be charged with a criminal
    offense. 18 U.S.C. 2422(b). As discussed above, we have held that § 2422(b)
    encompasses conduct where a defendant arranges to have sex with a minor
    through communications with an adult intermediary, including an adult law
    enforcement agent posing as a parent of a minor child. The crime of attempt
    requires (1) that the defendant had the specific intent to engage in the criminal
    conduct for which he is charged and (2) that he took a substantial step toward
    commission of the offense. Id.
    Here, the agents had probable cause to arrest Bolen because they had
    information that would cause a prudent person to believe that Bolen had attempted
    to induce a minor child to engage in sexual activity for which any person can be
    charged with a criminal offense. Specifically, the agents had information that
    Bolen had specific intent to induce a minor to engage in unlawful sexual activity
    6
    in the form of instant message and phone communications in which he negotiated
    with the purported mother of a minor for the minor to engage in sexual activity
    with him.1 See Murrell, 
    368 F.3d at 1287
    . The fact that these negotiations
    involved the purported mother of the minor and not the minor herself is if no legal
    significance under § 2422(b). See id. at 1286. The agents also had information
    that Bolen took a substantial step toward the commission of the offense, in that he
    arranged meeting with the purported mother and the minor and arrived at the
    meeting site at the planned time. Because the agents had probable cause to arrest
    Bolen, the district court did not err in denying Bolen’s motion to suppress
    evidence.
    Next, Bolen argues that the district court erred in denying Bolen’s motion to
    dismiss the indictment as he never communicated with a minor or an undercover
    officer posing as a minor.
    Whether an indictment sufficiently alleges a statutorily proscribed offense is
    a question of law that we review de novo. United States v. Steele, 
    178 F.3d 1230
    ,
    1233 (11th Cir. 1999). An indictment is sufficient if it (1) presents the essential
    1
    For example, Bolen advised “Paulina,” (1) via instant message, to bring her daughter with
    her to their meeting because he wanted to meet them both and he “[t]hought [Paulina] wanted to
    show her [his] cock” and, (2) over the phone, that at the planned meeting he wanted to go as far with
    “Rachel” as “Paulina” was willing to let him go, specifically stating that he wanted “Rachel” to
    perform oral sex on him.
    7
    elements of the charged offense, (2) notifies the accused of the charges to be
    defended against, and (3) enables the accused to rely upon a judgment under the
    indictment as a bar against double jeopardy for any subsequent prosecution for the
    same offense. 
    Id. at 1233-34
    . This rule “puts the defendant on notice of ‘the
    nature and cause of the accusation as required by the Sixth Amendment of the
    Constitution . . . [and] it fulfills the Fifth Amendment’s indictment requirement,
    ensuring that a grand jury only return an indictment when it finds probable cause
    to support all the necessary elements of the crime.” United States v. Fern, 
    155 F.3d 1318
    , 1325 (citation omitted).
    Here the indictment, that charged Bolen, tracked the language of the statute.
    Specifically, it charged him with “using a facility and means of interstate
    commerce, that is a computer connected to the Internet, attempted knowingly to
    persuade, induce, entice, and coerce an individual who had not attained the age of
    18 years to engage in prohibited sexual conduct, that is child molestation . . ., in
    violation of Title 18, United States Code, Section 2422(b).” Comparing the
    indictment to the charged statute of violation, it is clear that the indictment
    sufficiently alleged each element of the offense, that is, (1) using a facility of
    interstate commerce, (2) in an attempt, (3) to knowingly induce an individual who
    had not attained the age of 18 years, (4) to engage in illegal sexual activity. See
    8
    
    18 U.S.C. § 2422
    (b). Because the indictment sufficiently alleged each element of
    the offense, it (1) provided adequate notice of the charge, (2) enabled Bolen to rely
    upon the judgment under the indictment as a bar against double jeopardy, and (3)
    ensured that the grand jury found probable cause to support all the necessary
    elements. See Steele, 
    178 F.3d at 1233-34
    ; Fern, 
    155 F.3d at 1325
    . Further, as
    discussed above, any finding of probable cause does not constitute legal error
    here. Accordingly, the district court did not err in denying Bolen’s motion to
    dismiss the indictment for insufficiency.
    Last, Bolen argues that, in the event the Supreme Court rules in United
    States v. Booker, 543 U.S. ___, 
    125 S.Ct. 738
     (2005), that the Federal Sentencing
    Guidelines, or enhancements thereunder, are unconstitutional, this case should be
    remanded to the district court for resentencing in accordance with the ruling.
    However, Bolen signed an appeal waiver that barred appeal of his sentence unless
    the district court departed upward.
    We uphold appeal waivers as valid if they are knowingly and voluntarily
    entered. United States v. Buchanan, 
    131 F.3d 1005
    , 1008 (11th Cir. 1997) (citing
    United States v. Bushert, 
    997 F.2d 1343
    , 1350 (11th Cir.1993)); see also United
    States v. Benitez-Zapata, 
    131 F.3d 1444
    , 1446 (11th Cir.1997) (“Waiver will be
    enforced if the government demonstrates either: (1) the district court specifically
    9
    questioned the defendant about the waiver during the plea colloquy, or (2) the
    record clearly shows that the defendant otherwise understood the full significance
    of the waiver.”). Recently, we explained that “the right to appeal a sentence based
    on Apprendi/ Booker grounds can be waived in a plea agreement. Broad waiver
    language covers those grounds of appeal.” United States v. Rubbo, 
    396 F.3d 1330
    , 1335 (11th Cir. 2005) (dismissing the appeal because the broad appeal
    waiver provision precluded defendant from raising sentencing issues arising under
    Apprendi/Booker line of cases on appeal, and rejecting the argument that those
    issues fell within an exception to the appeal waiver in the written plea agreement
    for sentences above “statutory maximum” because the parties intended that term to
    have its ordinary meaning, namely, a sentence above the maximum in the United
    States Code, not the term-of-art definition developed in the Apprendi/Blakely line
    of cases); see also United States v. Grinard-Henry, 
    399 F.3d 1294
    , 1296-97 (11th
    Cir. 2005) (denying the motion to reconsider dismissal of the appeal because the
    appeal waiver was knowing and voluntary, the general appeal waiver language
    broad enough to include an Apprendi/Blakely/Booker claim, and the claim did not
    fall within an exception to an appeal waiver for “a sentence in violation of the law
    apart from the sentencing guidelines”).
    10
    Here, the broad appeal waiver provision in the plea agreement encompasses
    the sole sentencing issue arising under the Apprendi/Blakely/Booker line of cases.
    See Rubbo, 
    396 F.3d at 1335
    . The only exceptions to the appeal waiver provision
    that were provided in the plea agreement relate to Bolen’s right to appeal an
    upward departure from the applicable guideline range and the adverse
    determinations of his motion to suppress evidence and his motion to dismiss the
    indictment. Bolen’s Booker argument, then, does not satisfy any of the specified
    exceptions to the waiver. Moreover, because Bolen (1) has not argued in his
    appellate brief that the waiver was not valid because it was not knowing and
    voluntary, (2) failed to have his plea colloquy transcribed for a court determination
    of whether the waiver was knowing and voluntary, and (3) failed to file a reply
    brief in response to the government’s contention that his Booker argument was
    waived by the terms of his plea agreement, we conclude that the waiver must be
    upheld. See Loren v. Sasser, 
    309 F.3d 1296
    , 1304 (11th Cir. 2002) (holding, in
    the context of a civil proceeding, that we must affirm the district court when an
    appellant fails to provide all the evidence that the district court had before it when
    making contested rulings, relying on Fed.R.App.P. 10(b)(2), which provides that if
    an appellant intends to urge on appeal that a conclusion is unsupported by the
    evidence, the appellant must include in the record a transcript of all evidence
    11
    relevant to that conclusion). Thus, Bolen has waived his right to appeal his
    sentence under Booker. As such, we dismiss Bolen’s sentence appeal.
    AFFIRMED in part and DISMISSED in part.
    12