United States v. Peter Robert Bobal ( 2020 )


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  •          USCA11 Case: 19-10678       Date Filed: 11/30/2020   Page: 1 of 13
    [PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 19-10678
    ________________________
    D.C. Docket No. 0:18-CR-60072-BB-1
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    PETER ROBERT BOBAL,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    _______________________
    (November 30, 2020)
    Before WILLIAM PRYOR, Chief Judge, HULL and MARCUS, Circuit Judges.
    WILLIAM PRYOR, Chief Judge:
    This appeal requires us to decide whether a district court plainly erred by
    denying a criminal defendant’s motion for a new trial and by imposing a restriction
    USCA11 Case: 19-10678        Date Filed: 11/30/2020   Page: 2 of 13
    on using a computer as a special condition of a lifetime term of supervised release.
    After a bifurcated trial, a jury convicted Peter Bobal of attempting to persuade a
    minor to engage in sexual activity and committing a felony involving a minor
    while required to register as a sex offender. Bobal’s sentence included a lifetime
    term of supervised release, during which he could not use a computer except for
    work and with the permission of the district court. Bobal argues that the prosecutor
    misled the jury in her closing argument and that his computer restriction is
    unconstitutional in the light of Packingham v. North Carolina, 
    137 S. Ct. 1730
    (2017). We conclude that the prosecutor’s closing argument was not improper. We
    also conclude that Packingham is distinguishable because Bobal’s computer
    restriction does not extend beyond his term of supervised release, it is tailored to
    his offense, and he can obtain the district court’s approval to use a computer for
    permissible reasons. We affirm.
    I. BACKGROUND
    In October 2017, a 62-year-old woman living with her 18-year-old daughter
    in Hallandale Beach, Florida, found a note on her door. The note said something
    like “I think you’re beautiful,” although it was unclear whether the note was
    addressed to the woman or her daughter. It included a phone number but no name.
    The woman suspected that her neighbor, Peter Bobal, had left it. She asked her
    friend, a 60-year-old man, to call the number. He did, and he reached Bobal’s
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    voicemail. The friend hung up without leaving a message, but a short time later he
    began receiving text messages from Bobal. Bobal wrote that he was a single male,
    and he asked the caller to text him back. The friend did not respond.
    After continuing to ignore Bobal for a couple months, the friend decided to
    reply and to pose as a 14-year-old girl to see how Bobal would react. Bobal
    responded by asking if the girl’s mother was single, and he said that he could talk
    with either the girl or her mother about anything. He continued texting the
    fictitious girl, and he eventually asked her to send him a picture. The man posing
    as the girl offered the excuse that he was at school, but he asked Bobal for a
    picture. Bobal responded by asking if he should send one of his face or of him
    naked. The man never answered, so Bobal sent a picture of his face. But after the
    man commented that Bobal had sent a picture of his face “instead of the other,”
    Bobal sent the fictitious girl a picture of his penis. The man posing as the girl then
    contacted the Federal Bureau of Investigation and turned over copies of his text
    messages with Bobal.
    A special agent of the Bureau assumed the identity of the fictitious 14-year-
    old girl. He exchanged numerous text messages with Bobal, many of which were
    sexual in nature. Eventually, Bobal and the special agent arranged to meet. When
    Bobal arrived at the agreed-upon meeting place, the special agent arrested him.
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    A federal grand jury indicted Bobal on two counts: using a facility and
    means of interstate commerce to knowingly attempt to persuade, induce, entice,
    and coerce a minor to engage in sexual activity, 
    18 U.S.C. § 2422
    (b), and
    committing a felony offense involving a minor after being required to register as a
    sex offender, 
    id.
     § 2260A. Bobal had previously been convicted in Florida for
    using a computer to solicit a child to engage in sexual activity. At trial, Bobal
    stipulated to the second element of the second count: at the time of the alleged
    criminal misconduct, he was a registered sex offender.
    The district court held a two-day, bifurcated jury trial. It did not inform the
    jury about the charge under section 2260A until after the jury convicted Bobal of
    the charge under section 2422(b). In the trial for the latter charge, neither the
    government nor Bobal called any witnesses or offered any evidence other than
    Bobal’s stipulation.
    The prosecutor gave a short closing argument in which she explained the
    two elements of section 2260A: first, the defendant committed a felony offense
    involving a minor, and second, the defendant was required to register as a sex
    offender at the time of the offense. She explained that Bobal’s stipulation about
    being a registered sex offender satisfied the second element: “So the Defense is
    telling you: ‘We stipulate that the Government proves Count 2. I was a registered
    sex offender. I was required to register as a sex offender.’” And the prosecutor then
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    asserted that the guilty verdict for section 2422(b) satisfied the first element of
    section 2260A. She concluded, “So the only verdict as to Count 2 is a verdict of
    guilty.”
    Bobal did not object to the prosecutor’s statements, and he waived his own
    closing argument. The jury then convicted him of violating section 2260A.
    Later that day, after the trial ended, Bobal moved the district court for a new
    trial on the second count. He argued that the prosecutor had misstated the law
    when she said that “the only verdict as to Count 2 is a verdict of guilty” because
    the jury was free to reevaluate the evidence as to the first count. The district court
    denied the motion.
    The district court sentenced Bobal to 240 months of imprisonment followed
    by a lifetime term of supervised release. As a special condition of supervised
    release, it ordered that Bobal “shall not possess or use a computer that contains an
    internal, external or wireless modem without the prior approval of the Court.” And
    it further ordered that Bobal “shall not possess or use any computer; except that
    [he] may, with the prior approval of the Court, use a computer in connection with
    authorized employment.” Bobal did not object to these special conditions.
    II. STANDARD OF REVIEW
    We review unpreserved issues for plain error. United States v. Moran, 
    573 F.3d 1132
    , 1137 (11th Cir. 2009); United States v. Pendergraft, 
    297 F.3d 1198
    ,
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    1211 (11th Cir. 2002). We may reverse only if the error is plain, it affects
    substantial rights, and it “seriously affects the fairness, integrity, or public
    reputation of the judicial proceeding.” Pendergraft, 
    297 F.3d at 1211
    . An error
    cannot be “plain” if “neither the Supreme Court nor this Court has ever resolved
    [the] issue, and other circuits are split on it.” United States v. Aguillard, 
    217 F.3d 1319
    , 1321 (11th Cir. 2000).
    III. DISCUSSION
    Bobal argues that the district court erred by denying his motion for a new
    trial and asks that we reverse his conviction for violating section 2260A. He also
    contends that the computer restriction is unconstitutional in the light of
    Packingham. Because Bobal did not contemporaneously object either to the
    prosecutor’s closing argument or to his sentence, we review his arguments for
    plain error, and we reject them both.
    A. The District Court Correctly Denied Bobal’s Motion for a New Trial.
    Bobal argues that the district court should have granted his motion for a new
    trial for the charge under section 2260A because the prosecutor made two
    misstatements during her closing argument. First, the prosecutor said that Bobal
    stipulated to the second count instead of just one element of that count. Second,
    she told the jury that “the only verdict as to Count 2 is a verdict of guilty” when the
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    jury was actually free to reevaluate the evidence for the first count and to reach an
    inconsistent verdict.
    The prosecutor’s closing argument will constitute misconduct only if it was
    improper and prejudiced the substantial rights of the defendant. United States v.
    Taohim, 
    817 F.3d 1215
    , 1224 (11th Cir. 2013). We assess the prejudicial effect of
    arguments by “evaluat[ing] them in the context of the trial as a whole and
    assess[ing] their probable impact on the jury. To warrant a new trial, there must be
    a reasonable probability that but for the remarks, the outcome would be different.”
    
    Id.
     (internal quotation marks and citation omitted). We conclude that the district
    court did not err in denying Bobal’s motion for a new trial because the prosecutor’s
    statements were not improper and did not prejudicially affect Bobal’s substantial
    rights.
    In explaining Bobal’s stipulation to the jury, the prosecutor, paraphrasing
    Bobal, said, “We stipulate that the Government proves Count 2,” and on appeal,
    the government concedes that this statement was an “isolated slip of the tongue.”
    But, during the trial, the prosecutor immediately followed that “slip” with, “I was a
    registered sex offender. I was required to register as a sex offender.” From the full
    context of the quote, a reasonable juror would have understood the prosecutor to
    contend that Bobal had stipulated to only one element of section 2260A—that he
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    was required to register as a sex offender at the time of the offense—not the entire
    count.
    The prosecutor’s statement that “the only verdict as to Count 2 is a verdict of
    guilty” was clearly an argument meant to persuade the jury, not an instruction as to
    how it must vote. We allow lawyers to make “colorful and perhaps flamboyant
    remarks if they relate to the evidence adduced at trial,” United States v. Bailey, 
    123 F.3d 1381
    , 1400 (11th Cir. 1997) (internal quotation marks omitted), and the
    prosecutor’s remarks conveyed nothing more than elementary logic. Bobal’s
    stipulation that he was a registered sex offender satisfied one of the two elements
    of section 2260A. His conviction for violating section 2422(b)—delivered earlier
    that day by the exact same jury—satisfied the other. Because Bobal satisfied both
    elements, he was necessarily guilty of violating section 2260A. To be sure, the jury
    could have rendered an inconsistent verdict. But “[w]hile we recognize that a jury
    may render a verdict at odds with the evidence or the law, neither the court nor
    counsel should encourage jurors to violate their oath.” United States v. Trujillo,
    
    714 F.2d 102
    , 106 (11th Cir. 1983).
    Neither of the prosecutor’s statements was improper. But even if they were
    improper, “statements and arguments of counsel are not evidence, [and] improper
    statements can be rectified by the district court’s instruction to the jury that only
    the evidence in the case be considered.” United States v. Smith, 
    918 F.2d 1551
    ,
    8
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    1562 (11th Cir. 1990). Here, the district court twice instructed the jury that the
    lawyers’ statements were not evidence. So even if there were something wrong
    with the prosecutor’s closing argument, the district court cured the problem, and
    the prosecutor’s statements do not warrant a new trial. We affirm Bobal’s
    conviction for violating section 2260A.
    B. A Restriction on Computer Usage as a Special Condition of a Lifetime
    Term of Supervised Release Is Not Plainly Unconstitutional.
    Bobal next challenges the special condition of his supervised release that
    prohibits him from using a computer except for work and with the prior permission
    of the district court. He contends that this restriction is unconstitutional. But our
    precedents foreclose his argument.
    A district court does not commit plain error by imposing a computer
    restriction as a special condition of supervised release, even if the term of
    supervised release is life. We held in United States v. Zinn that a limited restriction
    on a sex offender’s ability to use the internet while on a three-year period of
    supervised release was “a necessary and reasonable condition of supervised
    release” that did not burden the offender’s rights under the First Amendment. 
    321 F.3d 1084
    , 1086, 1093 (11th Cir. 2003). Such restrictions are reasonably related to
    legitimate sentencing considerations, namely “the need to protect both the public
    and sex offenders themselves from . . . potential abuses” of the internet. 
    Id. at 1093
    . And computer restrictions are not overly broad when a sex offender on
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    supervised release can “still use the Internet for valid purposes by obtaining his
    probation officer’s prior permission.” 
    Id.
     Later, in United States v. Carpenter, we
    held that a district court did not plainly err by imposing a computer restriction as a
    special condition of supervised release for a period of life. 
    803 F.3d 1224
    , 1239–40
    (11th Cir. 2015).
    Bobal contends that Carpenter does not help us to resolve this appeal, but
    we disagree. To be sure, the issue we addressed in Carpenter was whether a
    computer restriction as a special condition of a lifetime period of supervised
    release was unreasonable, not whether it violated the First Amendment. 
    Id. at 1228
    . We also reached our conclusion in Carpenter in part because, even if there
    was any error in the length of the restriction, Carpenter invited it by asking the
    district court to sentence him to a lifetime period of supervised release. 
    Id. at 1239
    .
    But we also stated that because “no case of the Supreme Court or this Court says
    that a condition like this one cannot be imposed . . . there can be no plain error.” 
    Id.
    Bobal argues that the Supreme Court abrogated our precedents in
    Packingham v. North Carolina, when it held that a North Carolina law prohibiting
    registered sex offenders from accessing social networking websites that permitted
    children to be present violated the First Amendment, 
    137 S. Ct. at 1733, 1738
    , but
    Packingham is distinguishable for at least three reasons. First, the state law in
    Packingham restricted sex offenders even after they had completed their sentences.
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    Id. at 1737
    . Bobal’s computer restriction, by contrast, is a special condition of his
    supervised release and does not extend beyond his sentence. Second, the state law
    in Packingham applied to all registered sex offenders, not only those who had used
    a computer or some other means of electronic communication to commit their
    offenses. 
    137 S. Ct. at 1733
    . The Supreme Court explained that it was not holding
    that the First Amendment bars the enactment of “more specific laws than the one at
    issue.” 
    Id. at 1737
    . Indeed, the Court “assumed that the First Amendment permits a
    State to enact specific, narrowly tailored laws that prohibit a sex offender from
    engaging in conduct that often presages a sexual crime, like contacting a minor or
    using a website to gather information about a minor.” 
    Id.
     Bobal used an electronic
    device to attempt to persuade a minor with whom he had never communicated in
    person to have sex with him. His computer restriction prevents him from engaging
    in activity that could result in his repeating that offense. Third, unlike the state law
    in Packingham, Bobal’s computer restriction is not a “complete bar to the exercise
    of [his] First Amendment rights.” 
    Id. at 1738
    . Instead, it allows Bobal to obtain
    court permission to use a computer in connection with employment. And Bobal
    can also ask the district court to modify the terms of his supervised release for
    other reasons. See 
    18 U.S.C. § 3583
    (e)(2); Fed. R. Crim. P. 32.1(c). The computer
    restriction does not leave Bobal without recourse to protect his First Amendment
    rights.
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    Bobal urges us to adopt a more sweeping interpretation of Packingham. He
    cites a parenthetical sentence from the opinion, where the Supreme Court said, “Of
    importance, the troubling fact that the law imposes severe restrictions on persons
    who already have served their sentence and are no longer subject to the supervision
    of the criminal justice system is also not an issue before the Court.” Packingham,
    
    137 S. Ct. at 1737
    . Bobal understands this language to mean that the holding of
    Packingham applies to all computer restrictions, regardless of whether the
    defendant is on supervised release or has completed his sentence.
    We disagree. The sentence in question clarified that the Supreme Court
    decided only whether the North Carolina law violated the First Amendment, not
    whether the law was unconstitutional for other reasons not raised in the appeal.
    Nothing in Packingham undermines the settled principle that a district court may
    “impose reasonable conditions that deprive the offender of some freedoms enjoyed
    by law-abiding citizens” during supervised release. United States v. Knights, 
    534 U.S. 112
    , 119 (2001). Several of our sister circuits have likewise decided that, even
    after Packingham, a district court does not commit plain error by imposing a
    restriction on computer usage as a special condition of supervised release. See
    United States v. Perrin, 
    926 F.3d 1044
    , 1049–50 (8th Cir. 2019); United States v.
    Halverson, 
    897 F.3d 645
    , 658 (5th Cir. 2018); United States v. Rock, 
    863 F.3d 827
    ,
    831 (D.C. Cir. 2017).
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    Bobal urges us to follow the Third Circuit, which reached the opposite
    conclusion in United States v. Holena under an abuse-of-discretion standard. 
    906 F.3d 288
    , 290, 295 (3d Cir. 2018). The Third Circuit stated that, “[u]nder
    Packingham, blanket internet restrictions will rarely be tailored enough to pass
    constitutional muster.” 
    Id. at 295
    . And it concluded that “even under Packingham’s
    narrower concurrence,” a blanket computer restriction fails because it “precludes
    access to a large number of websites that are most unlikely to facilitate the
    commission of a sex crime against a child.” 
    Id.
     (internal quotation marks omitted).
    Holena read the opinions in Packingham too broadly. Both the majority
    opinion and the concurring opinion in Packingham agreed that the North Carolina
    law infringed the First Amendment rights of registered sex offenders, who would
    be committing an entirely new felony if they accessed certain websites. But neither
    opinion addressed whether the First Amendment is violated by a special condition
    of supervised release for a sex offender who is serving a sentence for an offense
    involving electronic communications sent to a minor.
    IV. CONCLUSION
    We AFFIRM Bobal’s conviction and sentence.
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