United States v. Rang , 919 F.3d 113 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 17-2019
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERT RANG, t/n Robert Joseph Rang,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Indira Talwani, U.S. District Judge]
Before
Lynch, Circuit Judge,
Souter,* Associate Justice,
and Kayatta, Circuit Judge.
Seth Kretzer and Law Offices of Seth Kretzer on brief for
appellant.
Anne Paruti, Assistant United States Attorney, and Andrew E.
Lelling, United States Attorney, on brief for appellee.
March 26, 2019
* Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
KAYATTA, Circuit Judge. In July 2017, a jury convicted
Robert Rang under 18 U.S.C. § 2422(b) of attempted coercion and
enticement of a minor to engage in sexual activity for which Rang
could be charged. Rang appeals his conviction, arguing that the
district court erred by denying in part his motion to suppress
statements made during an interrogation. Rang also challenges the
sufficiency of the evidence. For the following reasons, we affirm
his conviction.
I.
A.
Eight-year-old Minor A1 met Rang online while playing
the multiplayer video game Call of Duty on PlayStation.2 Minor A
and Rang (who was then approximately twenty-five years old) played
together nearly every other day for an extended period of time and
communicated orally via headsets with microphones. Minor A told
Rang his age and grade in school. Rang told Minor A that he lived
in Pennsylvania, which was true, and worked at Sony, which was
not. Minor A knew that Rang was an adult.
In March 2014, Rang and Minor A became "friends" on
Facebook. Rang asked for and obtained Minor A's home phone number
1
Between January 1, 2014 and December 29, 2014, the timeframe
alleged in the indictment, Minor A turned nine years old.
2 A PlayStation is a gaming system that can be connected to
the internet, allowing users across the world to play with one
another. Headsets allow users to talk to one another, and users
can also communicate through typed messages.
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and home address. Rang called Minor A's home phone to talk to him
and sent Minor A messages through TextNow, an online messaging
application that Rang instructed Minor A to download. Rang gifted
Minor A PlayStation cards, ranging from $20 to $50, that could be
used to buy PlayStation games or to purchase items within games.
Rang also let Minor A access his "PSN" membership, which allowed
Minor A to play certain games for free. Rang used his fictitious
position at Sony to manipulate Minor A, such as by telling Minor A
that Sony would block Minor A's PlayStation account access unless
Minor A played exclusively with Rang.
When Rang and Minor A played private games together,
Rang called Minor A "babe," and on numerous occasions said that he
loved Minor A. Rang also talked to Minor A about masturbation, a
term with which Minor A was unfamiliar. Rang explained
masturbation to Minor A and told Minor A to search online for
specific videos of men masturbating. On October 28, 2014, Rang
sent the following messages to Minor A3: "Omg I love u so much ur
making my dick ao hard"; "Can we masturbate babe im so hard we can
do it super fast if not it's okay"; "Ok and its ok i understand u
don't want to it's ok not mad i'll do it later by myself i wish i
had a few pics of you naked."
On October 30, 2014, Rang wrote:
3 We reproduce verbatim the text of the messages.
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[I] really want to play with u since Friday u wont be
home or on and also i might be comming out with in the
month of nov-ember to see u i really want to be with u
in person i really really really want us to live together
that would make me more happy then u will ever know.
Minor A testified that he thought Rang was planning to visit him.
B.
On December 29, 2014, upwards of ten law enforcement
officers executed a federal search warrant at Rang's Pennsylvania
home. Rang's father let the officers into the home, where they
found Rang on the second floor and handcuffed him. Michael
Connelly, a United States Postal Inspector, and Robert Smith, a
Massachusetts State Trooper, led Rang to the third-floor attic for
questioning. The interrogation that followed began at 8:41 a.m.
and lasted two hours and twenty-two minutes, the audio of which
was recorded.4
At the beginning of the interrogation, Connelly told
Rang that "one of the things that we have to do and we want to
make sure that you understand is just make sure you understand
your rights." Rang was then given printed Miranda warnings to
read. As Rang read the rights, he said, "This is just Miranda
rights," and "I know my Miranda rights." The following colloquy
then took place between Smith and Rang:
4
The district court found, and the government does not
dispute on appeal, that Rang was in custody at the time of the
interrogation. Neither party disputed below that the questioning
constituted an interrogation.
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SMITH: Let me, if you don't mind. I'll read them
aloud to you as well, okay?
. . .
Cause I want to make sure you've got through
it thoroughly. You're able to read these okay
without eyeglasses?
RANG: I understand. I've been arrested before. I
kind of know.
SMITH: All right, but just cause I want to make sure
you got through this thoroughly, okay?
RANG: I know--
SMITH: Before we ask any questions we must understand
that you understand them, okay?
RANG: I understand them.
Smith nevertheless proceeded to read Rang his Miranda
rights, after which Rang confirmed that he understood what had
been read to him. Rang signed and dated an acknowledgment that he
had received his rights, that his rights had been read to him, and
that he understood his rights.
The interrogating officers then asked Rang to read a
Miranda waiver. Rang read the waiver aloud. After apparently
mispronouncing the word "coercion" in the sentence "[n]o promises
or threats have been made to me and no pressure or coercion . . .
of any kind has been used against me," Rang explained that it meant
that the officers weren't "threatening [him] to get any questions
or answers."
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Connelly informed Rang that it was a felony under
18 U.S.C. § 1001 to lie to a federal agent. He also told Rang
that "if there's a question that you don't like . . . you can
say . . . I want to skip over that. You know, we'll talk about
that later. No problem. I've got no problem with that. I would
rather you not answer a question than lie to me about it."
Connelly explained that he would report the results of
the interrogation to the U.S. Attorney's Office. Rang then said
to Connelly, "[j]ust want to bring up to you, I just got up so
bear with me on this, all right? . . . My mind's not 100% working
right now." Connelly and Rang then had the following exchange:
CONNELLY: If you don't remember something, I don't know
is an okay answer. I don't want you to say--
RANG: I don't like those.
CONNELLY: --I don't know to everything.
RANG: I don't know. I don't like those kind of
answers. I'd rather think it out beforehand.
CONNELLY: And, okay, so that's, we're on the same page.
RANG: Yes.
CONNELLY: And if you have any questions for me, stop me
and say, you know . . . I don't understand
what you're asking.
During the course of the interrogation, Rang admitted
that he had: (1) sent Minor A sexually explicit messages;
(2) reserved a hotel in Yarmouth, Massachusetts for a weekend in
June; (3) instructed Minor A to download TextNow, an online
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messaging application; and (4) sent Minor A PlayStation cards as
gifts. Rang also admitted to being sexually attracted to minor
boys and acknowledged the illegality of child pornography.
Pursuant to the search warrant, law enforcement seized
Rang's iPhone, which contained, among other evidence, Minor A's
phone numbers and email address and calendar information regarding
Rang's hotel reservation for June 2015. Handwritten notes in
Rang's bedroom contained Minor A's contact information, Minor A's
PlayStation account names, Minor A's email addresses and
passwords, and a note stating "Money goal to be saved by June to
go see [Minor A]" with a dollar amount of $1,300.
C.
Rang was indicted on February 26, 2015, for attempted
coercion and enticement of a minor in violation of 18 U.S.C.
§ 2422(b). In due course, Rang filed a motion to suppress
statements obtained from him by Connelly and Smith during the
interrogation. Before the government responded, the parties
executed a plea agreement. See Fed. R. Crim. P. 11(c)(1)(C).
Six weeks later, Rang informed the district court by
letter that he wished to withdraw his plea. The district court
rejected the plea agreement, holding that it was not entered into
knowingly and voluntarily.
After further briefing, the district court held a
suppression hearing. The district court granted Rang's motion to
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suppress all statements obtained during the interrogation before
the officers gave Rang his Miranda rights. United States v. Rang,
No. 1:15-CR-10037-IT-1, 2017 WL 74278, at *8 (D. Mass. Jan. 6,
2017). It denied Rang's motion with respect to the statements
made after Rang waived his Miranda rights. Id.The case was tried over a seven-day period. The jury
convicted Rang on the sole count of attempted coercion and
enticement of a minor. The court sentenced Rang to twelve years'
imprisonment and fifteen years' supervised release. This appeal
followed.
II.
A.
Rang challenges the district court's refusal to suppress
his statements made during the interrogation after he received
Miranda warnings. We review a district court's findings of fact
on a motion to suppress for clear error and afford de novo review
to questions of law. See United States v. Coombs, 857 F.3d 439,
445-46 (1st Cir. 2017).
A Miranda waiver must be made knowingly, intelligently,
and voluntarily. See United States v. Sweeney, 887 F.3d 529, 536
(1st Cir. 2018). Rang argues that his mental capacity inhibited
his ability to waive his rights. Indeed, the district court
credited evidence of Rang's "borderline intellectual functioning,"
including testimony from a licensed and board-certified clinical
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neuropsychologist who evaluated Rang's cognitive abilities that
Rang "has an impaired ability to understand complex or abstract
concepts, to apply logic, and to use sound judgment." Rang, 2017
WL 74278, at *5. The neuropsychologist also testified that "people
who interact with [Rang] might not readily be aware of his
impairment, due to his strong social skills, average vocabulary
level, and ability to follow straightforward directions." Id.The district court nevertheless denied the motion to
suppress to the extent it included any statements made after Rang
received Miranda warnings and waived his right not to speak. Id.
at *8. It reasoned that Rang had knowingly, intelligently, and
voluntarily waived his rights and that Connelly and Smith did not
use coercive tactics to overbear Rang's will. Id. at *4-8. We
will uphold the district court's decision if "any reasonable view
of the evidence supports the decision." United States v. Materas,
483 F.3d 27, 32 (1st Cir. 2007) (quoting United States v. Hawkins,
279 F.3d 83, 85 (1st Cir. 2002)).
The type of diminished mental capacity demonstrated by
Rang does not by itself insulate him from a finding that he waived
his Miranda rights knowingly, intelligently, and voluntarily.
See, e.g., Colorado v. Connelly, 479 U.S. 157, 164 (1986); Coombs,
857 F.3d at 450; United States v. Rojas-Tapia, 446 F.3d 1, 7 (1st
Cir. 2006) ("A defendant's mental state or condition, by itself
and apart from its relationship to official coercion, is never
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dispositive of the inquiry into constitutional voluntariness.").
Rather, a court views the totality of the circumstances --
including the defendant's mental capacity -- to decide whether the
government has proved, by a preponderance of the evidence, that
the defendant's waiver was "both 'voluntary in that [it was] the
product of a free and deliberate choice rather than intimidation,
coercion and deception' and also made with 'full awareness of both
the nature of the right being abandoned and the consequences of
the decision to abandon.'" Sweeney, 887 F.3d at 536 (quoting
United States v. Rosario-Díaz, 202 F.3d 54, 69 (1st Cir. 2000));
see also Moran v. Burbine, 475 U.S. 412, 420 (1986).
We find that the district court's denial in part of
Rang's suppression motion is supported by a reasonable view of the
evidence. Rang knew his rights, even before the officers arrived.
See generally Rojas-Tapia, 446 F.3d at 8 ("[W]hatever the
deficiencies in his intellectual functioning, [the defendant's]
repeated earlier exposure to Miranda warnings made it extremely
unlikely that he failed to understand his rights at the time he
made these incriminating statements."). The officers repeatedly
made clear that he need not speak with them. And Rang's cogent,
on-point explanation of the meaning of coercion belies any claim
that he could not understand that central concept. A review of
the interrogation transcript indicates that Rang was responsive
and followed the thread of the questioning -- even crafting lies
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when it appeared to help him -- supporting the district court's
conclusion that Rang "gave coherent answers which signaled his
understanding of the questions asked." Rang, 2017 WL 74278, at
*7; see Coombs, 857 F.3d at 450.
In addition to his statements during the interrogation,
Rang's actions evince an ability to comprehend complex concepts
and long-term consequences. For example, Rang's relationship with
Minor A was cultivated throughout a series of months, during which
Rang displayed a firm understanding of his goal, careful planning,
and a nuanced use of carrots, sticks, truths, and lies in pursuit
of his desired outcomes. The district court could reasonably view
all of this behavior as contradicting any contention that Rang was
unable to weigh the possible ramifications of engaging with the
officers. Nor does the record undermine the conclusion that Rang's
cognitive limitations did not preclude him from deciding to speak
while knowing that the government could not require him to do so.
Cf. Jackson v. McKee, 525 F.3d 430, 436-37 (6th Cir. 2008) (holding
that "there is nothing cognitively complex about the advice that
one has a right to remain silent and not to talk to the police"
(citing Finley v. Rogers, 116 F. App'x 630, 638 (6th Cir. 2004)).
That the subsequent conversation, after Rang's waiver,
lasted more than two hours did not in any way retroactively vitiate
the waiver itself. Indeed, in Rosario-Díaz, we held that evidence
that a defendant whose "I.Q. was in the middle 70s" and who "had
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no prior involvement with the criminal justice system" waived her
Miranda rights even when the subsequent interrogation lasted
longer than six hours. 202 F.3d at 69.
Rang also argues that Connelly and Smith misled Rang
when he asked the officers what would happen after the
interrogation. Connelly told Rang:
The reason why we're here and what's going to happen at
the end of the day is I'm going to make a few phone calls
to the U.S. Attorney's Office. If we've cleared up you
know the matter that we're here at and they say yup, you
know we're good, no problems, you'll be let to go, you
know, on about your merry way.
Connelly continued:
On the flipside, if suddenly we find you know three
children and three kilos of cocaine in your basement,
we're going to have a different . . . you know
conversation. . . . [S]o the answer to your question is
we don't know what's going to happen right now but I
have no reason to believe that, you know, anything
crazy's going to go on. If something does change, I'm
going to tell you about it.
While literally true, Connelly's response nevertheless
conveyed an impression that there was a real chance Rang would be
on his "merry way." That impression, though, was tempered by
Connelly's subsequent statement that he did not know "what's going
to happen." Furthermore, Connelly told Rang that he was being
interrogated as part of an ongoing federal investigation that was
nearing its end.
Finally, and importantly, the officers never suggested
that Rang's words could not be used against him in a prosecution.
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When reading Rang his rights, Smith explained that just the
opposite was the case. That is, Rang had the "right to remain
silent" and "[a]nything [Rang said could] be used against [him] in
court." And Connelly stressed that "if there[] [was] a question
that [Rang didn't] like . . . [Rang could] say, Mike, I want to
skip over that. . . . I would much rather you not answer a question
than lie to me about it."
Rang also emphasizes the fact that he told the officers
that his mind wasn't "100% working right now." But, even taking
that statement at face value, it was apparently made in regard to
the fact that Rang had "just got[ten] up" -- reasonably interpreted
by Connelly to mean that Rang had just woken up, given that the
interrogation began at 8:41 a.m. -- not in relation to his long-
term cognitive capacity.
Of course, one might reasonably posit that no reasonably
intelligent person would waive Miranda rights, especially when
guilty. Hence the waiver here must not be "intelligent" in every
sense of the word. But very many people -- including intelligent
people -- do indeed speak to investigators, even when as a matter
of self-interest they are foolish to do so. See generally Mark A.
Godsey, Reformulating the Miranda Warnings in Light of
Contemporary Law and Understandings, 90 Minn. L. Rev. 781, 792
(2006) ("[M]odern studies demonstrate that roughly eighty percent
of suspects waive their Miranda rights and talk to the police.");
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Paul G. Cassell & Bret S. Hayman, Police Interrogation in the
1990s: An Empirical Study of the Effects of Miranda, 43 UCLA L.
Rev. 839, 842 (1996) (finding that only a "fraction of suspects
(about 16%) invoke their Miranda rights"); see also Pettyjohn v.
United States, 419 F.2d 651, 654 (D.C. Cir. 1969) ("We are unable
to accept the thesis that no one can ever intelligently waive an
important constitutional right voluntarily . . . ."). The
question is whether Rang possessed the minimum intelligence
necessary to understand that speaking to law enforcement was
optional. And the record clearly evidences such an understanding.
The Constitution guards against compulsion by the state, not poor
decision-making by defendants.
Viewing Rang's actions before and during the
interrogation, coupled with the precautions taken by the
interrogating officers, we affirm the district court's holding
that Rang knowingly, intelligently, and voluntarily waived his
Miranda rights. See Sweeney, 887 F.3d at 536.
B.
Rang additionally argues that the evidence was
insufficient to convict him of attempted coercion and enticement
of a minor in violation of 18 U.S.C. § 2422(b). We disagree.
The federal statute criminalizing the coercion and
enticement of a minor, section 2422(b), provides:
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Whoever, using the mail or any facility or means of
interstate or foreign 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 fined under this title and imprisoned not less
than 10 years or for life.
18 U.S.C. § 2422(b). Under federal law, "attempt" crimes "train
our attention on the defendant's 'intention to commit the
substantive offense'" and "require[] evidence that the defendant
in fact took a 'substantial step towards' the commission of the
offense[]." United States v. Saldaña-Rivera, 914 F.3d 721, 725
(1st Cir. 2019) (quoting United States v. Berk, 652 F.3d 132, 140
(1st Cir. 2011)).
Rang argues that his grooming of Minor A evidenced
neither an intent to engage in sexual activity with Minor A nor a
substantial step towards engaging in such activity. At most, he
says "he asked to see [Minor A] masturbate, but never tried to
meet him to perform masturbation on Rang." Implicit in Rang's
position is the argument that "sexual activity" requires
interpersonal physical contact, a question that has caused
division amongst the circuits. Compare United States v. Fugit,
703 F.3d 248, 256 (4th Cir. 2012) (interpreting "sexual activity"
as conduct connected with the "active pursuit of libidinal
gratification" on the part of an individual and therefore not
requiring physical contact), with United States v. Taylor, 640
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F.3d 255, 259-60 (7th Cir. 2011) (applying the rule of lenity to
interpret "sexual activity" as requiring physical contact). We
find no need to join this debate, however, as the evidence shows
that Rang intended and took steps towards achieving clearly illegal
sexual contact with a minor: He rented a hotel room near where
Minor A lived and plied Minor A's mother -- who was incarcerated
at the time -- with money and assurances to secure her permission
for a "sleep over" with Minor A; he told Minor A that Minor A
sexually aroused him and that he wanted to masturbate with Minor A;
and he asked Minor A to send him naked photographs. Rang further
admitted to being sexually attracted to minors, having to "force
[himself] away" from thoughts of minors, and spending time with
people his age to try to avoid those feelings. On this record,
there was ample evidence to allow a jury to conclude that the
intended "sleep over" contemplated -- indeed, obsessively
envisioned -- interpersonal sexual contact. And by, among other
things, reserving a hotel room and pressing Minor A's mother for
consent, Rang certainly took concrete steps towards consummating
the intended libidinous relationship. Accordingly, we hold that
sufficient evidence supported Rang's conviction for attempted
coercion and enticement of a minor.
III.
For the foregoing reasons, we affirm Rang's conviction
under 18 U.S.C. § 2422(b).
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