United States v. David Marshall Deal , 438 F. App'x 807 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-15525 ELEVENTH CIRCUIT
Non-Argument Calendar AUGUST 18, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 3:08-cr-00368-TJC-JRK-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,
versus
DAVID MARSHALL DEAL,
a.k.a. cptliquidice999999,
a.k.a. md,
llllllllllllllllllllllllllllllllllllllllDefendant-Appellant.
_______________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(August 18, 2011)
Before EDMONDSON, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
David Deal appeals his convictions for attempting to entice a minor both to
engage in sexual activity, 18 U.S.C. § 2422(b), and to engage in sexually explicit
conduct to produce child pornography, id. § 2251(a), (e). Deal challenges the
denial of his motion to dismiss his indictment, the sufficiency of the evidence to
support his convictions, and evidentiary rulings. Deal also argues that the United
States elicited false testimony from an investigating officer and that the district
court should have instructed the jury about Deal’s potential sentence. We affirm.
On August 28, 2008, Deal sent an instant message using a screen name
“cptlinquidice999999” to “Alice,” an online persona created by Detective Kurt
Jones, who served on a task force that investigated internet crimes against
children. Jones used grammar typical of a 13 year old girl whose profile he had
created both on Yahoo! and VampireFreaks.com to discuss with Deal topics
ranging from Alice’s age and sexual experience to the appearance of her genitalia.
During nine days of the instant message conversations, most of which Deal
initiated, Deal provided Alice with his cellular telephone number and several
photographs of himself, including one that depicted a registration number on a
boat that Jones traced to Deal. During an online conversation on September 6,
2008, Alice agreed to meet Deal in the parking lot of Dave and Buster’s restaurant.
After Jones observed Deal arrive at the restaurant at the arranged time, Jones sent
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Deal an instant message stating that Alice got caught trying to sneak out of her
house. In the five days of online conversations that followed, Deal became more
graphic in describing how he wanted to photograph Alice and how he wanted to
engage in specific sexual activities with Alice. Deal inquired about Alice’s waist
size, offered to bring her a pair of thong underwear, and said repeatedly that he
would wear a condom during sexual intercourse.
Alice agreed to meet Deal at Dave and Buster’s restaurant on September 11,
2008, and an investigator arrested Deal in an adjacent parking lot after he drove
through the parking lot of the restaurant. Investigators searched Deal’s vehicle
and discovered in an open backpack a camera, two pairs of thong underwear, and
condoms. Deal later waived his rights to remain silent and to counsel and, when
confronted with evidence of his online conversations, admitted that he had
intended to meet Alice, but asserted he did not intend to harm Alice. Deal
apologized repeatedly, and he wrote in a letter to the prosecutor that he was
“deeply sorry,” he “did not want to do anything to this girl,” and he would “never
do anything like this again and hate to have this on [his] record.”
Deal was charged in a third superceding indictment with two counts of
transporting videos of child pornography, 18 U.S.C. § 2252(a)(1), attempting to
entice a minor to engage in sexual activity, id. § 2422(b), and attempting to entice
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a minor to engage in sexually explicit conduct to produce child pornography, id.
§ 2251(a), (e). Before trial, the United States dismissed the two distribution
charges. Deal filed motions to suppress the evidence discovered in his vehicle, his
statements to law enforcement, and the letter he wrote to a prosecutor, and he also
moved to dismiss as unconstitutional his charge for violating section 2422(b). The
district court denied Deal’s motions. At trial, the jury found Deal guilty of both
charges of attempted enticement.
Deal argues that his charge for violating section 2422(b) should have been
dismissed on the ground that the statute is unconstitutionally vague and overbroad,
but this argument fails. Deal acknowledges that we rejected a similar argument in
United States v. Panfil, 338 F.3d 1299, 1301 (11th Cir. 2003), where we held that
“the language of § 2422(b) is clear” and the phrase “sexual activity for which any
person can be charged with a criminal offense” could be interpreted readily based
on its “plain and ordinary meaning[].” Deal contends that the statute is vague
because it incorporates the laws of the 50 states, which vary with regard to what
qualifies as a prohibited “sexual activity,” but the statute is not unconstitutional
because it references different state laws, see United States v. Anwan, 966 F.2d
1415, 1424 (11th Cir. 1992). Deal’s indictment, which included the text of the
statute, charged him with attempting to entice “a person [he] believed had not
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attained the age of 18 years, to engage in sexual activity for which a person can be
charged . . . under the laws of the State of Florida, that is, the crime of lewd and
lascivious battery upon a person less than 16 years of age, in violation of Section
800.04(4)(a), Florida Statutes.” 18 U.S.C. § 2422(b). Deal lacks standing to argue
hypothetically that the statute would be unconstitutional as applied either to
conduct that would constitute a misdemeanor or would involve a 16 or 17 year
old. See United States v. Di Pietro, 615 F.3d 1369, 1371–72 (11th Cir. 2010).
The district court did not err by denying Deal’s motion to dismiss his indictment.
Deal argues that the United States failed to prove that he believed that Alice
was 13 years old or that Deal took a “substantial step” to accomplish his crimes,
but his arguments are absurd. Deal was well aware of Alice’s age: Deal contacted
Alice after reviewing her online profiles at Yahoo! and VampireFreaks.com, both
of which contained pictures of a young girl and described Alice as being 13 years
old; Alice told Deal repeatedly that she was 13 and in eighth grade; Deal
responded positively to Alice’s question if “13 [was] ok”; and Deal remarked that
he “fe[lt] like [he]’d be robing [sic] the cradle . . . .” Although Deal testified that
he believed Alice was older because her online photograph was dated and she
frequented an adult restaurant, Dave and Buster’s, a jury reasonably could have
discredited Deal’s testimony, see United States v. Tampas, 493 F.3d 1291, 1298
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(11th Cir. 2007), based on Alice’s statements, Deal’s keen interest in Alice’s
physical immaturity, see United States v. Lanzon, 639 F.3d 1293, 1298–99 (11th
Cir. 2011), and his acknowledgment in the first online conversation that a
relationship with Alice could “get [him] in . . . trouble,” see United States v.
Farley, 607 F.3d 1294, 1334 (11th Cir. 2010). Deal’s testimony, which the jury
discredited, provides substantive evidence of his guilt. See United States v.
Brown, 53 F.3d 312, 314 (11th Cir. 2007). In addition to his sexually explicit
conversations, Deal took other substantial steps to entice Alice to agree to sexual
activities and to be photographed. Deal offered to buy Alice a bikini and thong
underwear, obtained her permission to be photographed, arranged to meet at a
location convenient for Alice, traveled to that location twice, and had in his
possession a camera, thong underwear, and condoms. See Lanzon, 639 F.3d at
1299. The United States presented ample evidence to support Deal’s convictions.
Deal challenges the denial of three of his motions to suppress, but his
arguments fail. First, Deal argues that the evidence seized from his vehicle should
have been suppressed because officers lacked probable cause to search his vehicle
without a warrant, but the officers had probable cause to believe that Deal had
contraband in his vehicle: that is, the camera, thong underwear, and condoms Deal
had mentioned in his online conversations with Alice. See id. at 1300. Second,
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Deal argues that the oral and written statements he made to law enforcement were
involuntary because he felt ill and because Jones “tricke[d]” Deal into believing
that he could avoid prosecution, but Deal waived his right to remain silent both
orally and in writing and the events that followed did not affect the voluntariness
of that waiver. When Deal complained of feeling lightheaded and queasy,
interrogators granted his request for a trash can and provided him water. Jones’s
remark to Deal that “we might be able to straighten some of this out” was
responsive to Deal’s assertions that his contact with Alice was innocent and did
not promise exoneration in exchange for Deal’s cooperation, see United States v.
Mercer, 541 F.3d 1070, 1075–76 (11th Cir. 2008), and Jones’s statement in which
he offered Deal an “opportunity” to write a letter to the prosecutor was “not a
sufficient inducement so as to render [the contents of the letter] involuntary,”
United States v. Davidson, 768 F.2d 1266, 1271 (11th Cir. 1985). Third, Deal
argues that the letter he wrote to a prosecutor was inadmissible as part of a plea
negotiation, see Fed. R. Evid. 410; Fed. R. Crim. P. 11(f), but Deal’s statements of
contrition, coupled with the denial of guilt, were plainly not made “with a view
toward negotiating a plea agreement.” United States v. Robertson, 582 F.2d 1356,
1368 (5th Cir. 1978).
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Deal argues that the district court plainly erred by admitting “suppressed
evidence” about Deal’s Yahoo! internet account, but when the United States
offered into evidence the records of the online account, defense counsel stated he
had “[n]o objection.” Moreover, Deal admitted that he had engaged in the
conversations for that account. The district court did not plainly err.
Deal also complains about two other trial errors, neither of which warrants
relief. First, Deal argues, for the first time on appeal, that Jones testified falsely
that Deal contacted him in a romance chatroom and the introduction of that false
testimony violated Deal’s right to due process, Giglio v. United States, 405 U.S.
150, 92 S. Ct. 763 (1972), but Jones acknowledged during cross-examination that
he had been mistaken and, in the light of overwhelming evidence of Deal’s guilt, it
is unlikely that Jones’s earlier misstatement affected the jury’s judgment, see
United States v. Alzate, 47 F.3d 1103, 1110 (11th Cir. 1995). Second, Deal argues
that the district court should have instructed the jury about the mandatory
minimum sentences that Deal faced, but he acknowledges the controlling authority
that “‘the punishment provided by law for offenses charged is a matter exclusively
for the court and should not be considered by the jury in arriving at a verdict as to
guilt or innocence,’” United States v. Thigpen, 4 F.3d 1573, 1577 (11th Cir. 1993)
(quoting United States v. McCracken, 488 F.2d 406, 423 (5th Cir. 1974)). We are
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bound by that precedent unless it is overruled by the Supreme Court or this Court
sitting en banc. Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1274 (11th Cir.
2010).
We AFFIRM Deal’s convictions.
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