United States v. Kaye , 243 F. App'x 763 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5277
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID A. KAYE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:06-cr-00205-JCC)
Submitted: May 30, 2007 Decided: July 6, 2007
Before NIEMEYER, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Peter D. Greenspun, Melinda L. VanLowe, GREENSPUN, DAVIS & LEARY,
P.C., Fairfax, Virginia, for Appellant. Chuck Rosenberg, United
States Attorney, Edmund P. Power, Assistant United States Attorney,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David A. Kaye appeals his convictions after a bench trial
of coercion and enticement of a minor in violation of 18 U.S.C.
§ 2422(b) (2000), and travel with intent to engage in illicit
sexual contact with a minor in violation of 18 U.S.C. § 2423(b)
(2000), and his resulting seventy-eight month sentence. Kaye
claims the district court erroneously: (i) denied his pre-trial
motion to dismiss the indictment; (ii) excluded evidence at trial
he claims was exculpatory; and (iii) denied his Fed. R. Civ. P. 29
motion for judgment of acquittal based on the sufficiency of the
evidence. We affirm.
At 3:50 a.m. on August 7, 2005, Kaye, a fifty-four year
old resident of Maryland, initiated Internet contact under the
screen name “REDBD” with an individual with the screen name “MadC
Rad1992.” Upon contact, Kaye immediately inquired whether “MadC
Rad1992” was thirteen years old, to which “MadC Rad1992" responded
in the affirmative and informed Kaye he lived in Herndon, Virginia.
When “MadC Rad1992" inquired whether Kaye could not sleep, Kaye
responded he was “prowling for young men.” During this
communication, Kaye and “MadC Rad1992" electronically exchanged
photographs. “MadC Rad1992" emailed Kaye a photograph of a young
male and Kaye emailed sexually explicit photographs of himself
posing nude and engaging in fellatio with another male.
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Unbeknownst to Kaye, “MadC Rad1992" was really an adult,
Sean O’Connor. O’Connor was an undercover operative with Perverted
Justice, an online organization dedicated to exposing adults who
use the Internet to seek sexual activity with children. During his
online chat with “MadC Rad1992,” Kaye also communicated by
telephone with a person he believed to be “MadC Rad1992,” but who
was really a twenty-four-year-old woman named Alison Shea, another
undercover operative with Perverted Justice.
Between August 7, 2005 and August 17, 2005, Kaye
communicated via instant messaging with “MadC Rad1992" several
times, each time discussing sexually explicit topics and sexual
acts Kaye and “MadC Rad1992" could perform on one another. The two
also planned to meet when “MadC Rad1992's” father would not be
home, and on August 17, 2005, Kaye traveled from Maryland to
Herndon, Virginia to meet “MadC Rad1992.”
Upon entering the Herndon, Virginia home, Kaye was met by
NBC Dateline correspondent, Chris Hansen, who immediately conducted
an interview of Kaye. When asked by Hansen what he was doing
there, Kaye responded “[n]ot somethin’ good.” Upon questioning why
he came to the home, Kaye responded “[u]m, that I don’t wanna be
. . . look this isn’t good.” Shortly thereafter, Kaye stopped the
interview and left the home.
Kaye subsequently contacted America Online to inquire how
he could remove “all aspects of the screen name REDBD from his
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computer.” Kaye also inquired of his employer’s computer network
manager how he could remove personal items from his computer.
After receiving the information from the manager, Kaye asked if
“there was any way that [she] could guarantee nobody would find”
the information. Kaye’s employer later gave Kaye’s computer to law
enforcement and forensic analysis revealed a portion of the chat
with “MadC Rad1992,” the pictures Kaye sent to him, and driving
directions to the Herndon, Virginia home.
Kaye claims the district court erred in denying his
motion to dismiss the indictment because: (i) Kaye could not be
convicted of a violation of § 2422(b) since he interacted at all
times with an adult and not a thirteen year old boy; (ii) § 2422(b)
unconstitutionally criminalized Kaye’s protected speech; (iii)
§ 2423 unconstitutionally criminalized Kaye’s right to travel; and
(iv) Perverted Justice’s failure to record Shea’s telephone
conversation with Kaye required the indictment be dismissed. We
review a district court’s denial of a motion to dismiss the
indictment made before trial de novo. See United States v. Loayza,
107 F.3d 257, 260 (4th Cir. 1997).
Kaye argues he could not be convicted of a violation of
§ 2422(b) because the Government did not prove he was guilty of
§ 18.2-370 since his victim was not a child under fourteen years of
age. Kaye’s argument is meritless. Under § 2422(b), it is
unlawful for a person, “using . . . any facility or means of
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interstate . . . commerce . . . [to] knowingly persuade[],
induce[], entice[] or coerce[] 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
attempt[] to do so . . .” See 18 U.S.C. § 2422(b) (2000). To
obtain a conviction under § 2422(b), the Government must also prove
that the additional elements of Va. Code Ann. § 18.2-370, which
makes it unlawful for an individual to take indecent liberties with
a child,1 were satisfied.
Kaye argues that because it is undisputed he interacted
with adults rather than a child, his behavior did not violate
§ 18.2-370, and therefore could not violate 18 U.S.C. § 2422.
Because the Virginia Supreme Court explicitly ruled in Hix v.
Commonwealth, 619 S.E.2d 80, 83-87 (Va. 2005), that the absence of
an actual child has no bearing on the crime of attempt under
§ 18.2-370, we conclude the district court correctly rejected
Kaye’s argument.
1
A violation of § 18.2-370 occurs when “any person eighteen
years of age or over, who, with lascivious intent, knowingly and
intentionally” takes indecent liberties with “any child under the
age of fifteen years.” Va. Code Ann. § 18.2-370. Taking indecent
liberties with a child includes proposing “that any such child
expose his or her sexual or genital parts to such person”, “feel or
fondle the sexual or genital parts of any such child”, perform “an
act of sexual intercourse” or “entice[s], allure[s], persuade[s],
or invite[s] any such child to enter . . . [a] place, for any of
the[se] purposes.” Va. Code Ann. § 18.2-370.
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We also reject Kaye’s arguments that §§ 2422 and 2423 are
unconstitutional as applied to him. Because these arguments were
made in a supplemental memorandum filed long after the motions
deadline set by the district court pursuant to Fed. R. Crim. P.
12(c), and after oral argument on Kaye’s motion to dismiss the
indictment took place, the district court dismissed them as
untimely. In rejecting Kaye’s supplemental arguments, the district
court also noted it nonetheless found Kaye’s arguments meritless.
On appeal, Kaye argues only that the district court erred in its
ruling on the substance of his arguments, but does not challenge
the district court’s finding the supplemental arguments were
untimely. Accordingly, we conclude Kaye has abandoned any
challenge to the dismissal of his arguments by the district court.
See United States v. Al-Hamdi, 356 F.3d 564, 571 n.8 (4th Cir.
2004) (“It is a well settled rule that contentions not raised in
the argument section of the opening brief are abandoned.”). In any
event, we have carefully reviewed the district court’s alternative
reasoning that §§ 2422 and 2423 are constitutional as applied to
Kaye, and would reach the same conclusion.
Kaye also argues the district court erred in denying his
motion to dismiss the indictment for spoliation of evidence because
Perverted Justice’s failure to record a telephone conversation
between Shea and Kaye prevented Kaye “from playing the true,
complete and accurate telephone conversation and proving that he
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was lead to believe, by the speaker’s voice, that he was speaking
with an adult.” Kaye’s argument is meritless.
In his motion to dismiss the indictment for spoliation of
evidence, Kaye conceded, as he does on appeal, that dismissing an
indictment for “spoliation of evidence is a drastic remedy that
typically requires that bad faith be proven.” Cole v. Keller
Indus., Inc., 132 F.3d 1044, 1047 (4th Cir. 1998). Kaye, however,
neglects to identify any bad faith on the part of Perverted
Justice.
Moreover, to the extent Kaye argues he was denied due
process by Perverted Justice’s failure to record the conversation,
this argument similarly fails because law enforcement, not a
private actor, must have acted in bad faith before the destruction
of evidence will constitute a due process violation. See Arizona
v. Youngblood, 488 U.S. 51, 57-58 (1988). Because there was no
showing that Perverted Justice acted at the direction or under the
control of law enforcement, the district court correctly found that
“[a]ny deficiency in the evidence can be remedied during cross-
examination at trial and considered by the fact-finder.”
Kaye next claims the district court erred in excluding
evidence of an instant message chat he had with Gregory Brainer,
another Perverted Justice operative, after the Perverted Justice
sting operation. Kaye claims the chat was a prior consistent
statement that should have been allowed after Kaye was cross-
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examined by the Government and his intention regarding the
solicitation questioned, or in the alternative, that the chat log
should have been excepted from hearsay under the residual exception
because it was inherently trustworthy. Because the conversation
post-dated the sting operation, lacked indicia of reliability, and
since its admission would have far-reaching ramifications, the
district court found the evidence to be inadmissible hearsay. The
decision of a district court to admit or exclude evidence is
reviewed for abuse of discretion. See United States v. Young, 248
F.3d 260, 266 (4th Cir. 2001). This court will find such abuse of
discretion only if the district court’s evidentiary ruling was
arbitrary or irrational. See United States v. Achiekwelu, 112 F.3d
747, 753 (4th Cir. 1997). Because Kaye’s chat with Brainer took
place in January or February 2006, five or six months after the
Perverted Justice sting operation, Kaye’s motive to fabricate an
exculpatory explanation for his conduct arose before Kaye’s chat
with Brainer. Accordingly, we conclude the district court did not
err in excluding evidence of the chat between Kaye and Brainer.
Kaye’s final contention is that the district court erred
in denying his motion for judgment of acquittal because the
Government produced insufficient evidence regarding Kaye’s intent
to engage in unlawful sexual acts with a minor and to travel in
interstate commerce for that purpose. We review the denial of a
Rule 29 motion de novo. See United States v. Alerre, 430 F.3d 681,
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693 (4th Cir. 2005), cert. denied, 126 S. Ct. 1925 (2006). We
conclude there was sufficient evidence to establish Kaye intended
to engage in unlawful sexual acts with a minor and to travel in
interstate commerce for that purpose.
A review of the trial transcript leaves little room to
doubt that Kaye communicated with “MadC Rad1992” believing he was
a minor, that his communications were an attempt to lure “MadC
Rad1992” into engaging in unlawful sexual acts with him, and that
Kaye traveled from Maryland to Herndon, Virginia intending to lure
“MadC Rad1992” into engaging in sexual acts with him. As the
district court found, the chat logs of Kaye’s conversations with
“MadC Rad1992” established Kaye first complimented “MadC Rad1992”
on being “cute” and “sweet,” then made “blatant, aggressive sexual
advances” toward him by suggesting various forms of oral and manual
sexual stimulation.
We conclude the evidence also established Kaye believed
he was communicating with a thirteen-year-old boy. During Kaye’s
first chat with “MadC Rad1992,” Kaye immediately inquired whether
“MadC Rad1992” was only thirteen, likely inferring his age from the
inclusion of “1992" in his screen name. In addition, Kaye
repeatedly referred to “MadC Rad1992” as “young” and being only
thirteen years of age during their chats, and the chats often
centered around whether and when “MadC Rad1992's” father was home.
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This conclusion is bolstered by the manner in which Kaye reacted
upon entering the Herndon, Virginia home.
Although Kaye claims the evidence was insufficient to
support a conviction because he thought “MadC Rad1992" was an adult
and did not travel to Herndon to engage in sexual acts with him, we
conclude the district court’s disregard of this testimony was a
credibility determination that should not be disturbed on appeal.
See United States v. Lomax, 293 F.3d 701, 706 (4th Cir. 2002). As
the district court explicitly stated, it “did not find Defendant’s
testimony to be credible in its assessment of his veracity,
demeanor, cadence, tenor, and inflection of his voice as well as
the consistency of his answers on cross examination.” Accordingly,
we conclude the district court correctly denied Kaye’s Rule 29
motion.
Based on the foregoing, we affirm Kaye’s convictions and
sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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