United States v. Moser

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06-4406

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

THOMAS C. MOSER,

Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:05-cr-00443-RDB)

Submitted: May 9, 2007 Decided: August 10, 2007

Before TRAXLER and KING, Circuit Judges, and T. S. ELLIS, III,
Senior United States District Judge for the Eastern District of
Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion.

Robert M. Gamburg, Philadelphia, Pennsylvania, for Appellant. Rod
J. Rosenstein, United States Attorney, Jennifer A. Wright,
Assistant United States Attorney, Andrew G. W. Norman, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Thomas Moser appeals from his 2006 convictions and sentence

imposed in the District of Maryland for three offenses: (1)

traveling in interstate commerce for the purpose of engaging in a

sexual act with a minor, in violation of 18 U.S.C. § 2423(b); (2)

using the mail and interstate commerce to entice a minor to engage

in unlawful sexual activity, in violation of 18 U.S.C. § 2422(b);

and (3) offering in interstate commerce to obtain control of a

minor, with intent to promote sexually explicit conduct by such

minor and to produce visual depictions of such conduct, in

violation of 18 U.S.C. § 2251A(b)(2)(A) (“Count Three”). Moser

presents two contentions of error in this appeal: first, that the

written statement he made to federal agents following his 2005

arrest in Maryland was involuntary and thus inadmissible; and

second, that the trial court’s instruction concerning the statutory

term “control” on Count Three constituted reversible error. As

explained below, we reject Moser’s contentions and affirm.

I.

The events leading to Moser’s arrest began on May 26, 2005,

when Postal Inspector Clayton Gerber (“Inspector Gerber”) entered

an existing Yahoo! chat room on the Internet using the assumed

identity of a woman named “Kelly Mason.” Under the screen name

“kelly_mason76,” Inspector Gerber posed as the mother of two young

2
daughters with hobbies including family time and “videos.” Not

long after he entered the chat room (whose title included the word

“incest”), Inspector Gerber received an unsolicited message from

Moser. Moser used the screen name “tomassjr6969” to communicate

with Kelly, and his accompanying profile indicated that he was a

single thirty-six-year-old man living in Pennsylvania. During this

first chat session, Kelly asserted that she had two daughters, ages

twelve and fourteen. Moser, in response, indicated that he had two

children of his own, asked Kelly if she came to the chat room

looking for some fun, and indicated an interest in making videos

with Kelly and her children.

Over the next four months, Moser and Inspector Gerber (posing

as Kelly Mason), continued to converse online. During their

conversations, Moser offered to visit Kelly’s Maryland home and

engage in a variety of sexual activities with her daughters. Moser

also asked if he could videotape the encounters and inquired

whether he could be alone with Kelly’s children during those

activities. In approximately fifteen online conversations and in

various emails, Moser related in graphic detail the sexual

activities that he wished to engage in with Kelly’s daughters.1

Moser also sent letters by mail to Kelly’s fictitious daughters,

1
In addition to the communications described above, Moser
emailed several photographs to Kelly with the request that she show
them to her daughters. These included pictures of Moser’s face as
well as his naked torso and genitalia.

3
Lisa and Jessie. In these letters, Moser described the sexual

education he planned to provide the girls and asked Lisa, the

purported fourteen-year-old, if he could be alone with her when he

came to Maryland. In his conversations with Kelly and in his

letters to Lisa and Jessie, Moser discussed bringing his own

eleven-year-old daughter with him to Maryland so that she could

also receive a “sex education.” Moser also advised Kelly that he

was accustomed to being awake at night because he often worked the

night shift.

Inspector Gerber, still posing as Kelly Mason, arranged to

meet Moser at a restaurant in Frederick, Maryland, on September 9,

2005. Moser believed he was meeting Kelly to spend the weekend

making pornographic videos with her daughters. To this end, Moser

took condoms, lubricant, video and digital cameras, and X-rated

movies to Maryland with him in his pickup truck. Moser drove

approximately three hours from northeastern Pennsylvania to

Maryland and arrived for the meeting in Frederick at about 6:45

p.m. on September 9. He was promptly arrested by the authorities

(at 6:50 p.m.), and transported to the Frederick County Law

Enforcement Center.

After being advised of his Miranda rights,2 Moser agreed to be

questioned without an attorney, and he signed a written Miranda

warning and waiver of rights form at 7:10 p.m. Inspector Gerber

2
See Miranda v. Arizona, 384 U.S. 436 (1966).

4
and federal Immigration and Customs Agent Augustus Aquino (“Agent

Aquino”) interviewed Moser until about 10:15 p.m. During this

time, Moser gave the agents an oral statement, agreed to give them

a written statement, and signed a second Miranda warning and waiver

of rights form.3 Moser completed and signed his written statement

(the “Statement”) at 3:55 a.m. on September 10, 2005.

Accordingly, from the time of his arrest until the completion

of the Statement, Moser was with the agents for nearly nine hours.

During this time, Moser was encouraged to eat and drink, he was

given breaks to compose himself, and he was allowed several trips

to the restroom. Indeed, one such break lasted approximately

thirty minutes. Although Moser asserted later that he was

emotionally drained, “very, very tired,” and not in the “right

train of thought” when he began preparing the Statement, J.A. 71-

72, Inspector Gerber and Agent Aquino both testified that Moser

never requested that the interview be terminated, never indicated

he was too tired to continue, and did not otherwise demonstrate any

reluctance to be interviewed.4

3
As noted, Moser gave oral and written statements to the
agents following his arrest. Because he has not challenged the
prosecution’s use of his oral statement at trial, we assess only
the admissibility of his written statement.
4
Citations herein to “J.A. ___” refer to the contents of the
Joint Appendix filed by the parties in this appeal. Citations to
“S.J.A. ___” refer to the Supplemental Joint Appendix filed herein.

5
 Before writing the Statement, Moser signed the advice of

rights portion of the statement form, indicating that Inspector

Gerber had advised him of his Miranda rights at 10:15 p.m. This

portion of the form reflects that Moser understood his rights, that

he was willing to give a statement and answer questions, that he

did not desire the assistance of a lawyer, that no promises or

threats had been made to him and no pressure or coercion had been

used against him, and that he was voluntarily making the

Statement. Similarly, the form indicates that Moser had read the

Statement and that it was true and correct, that he had been given

an opportunity to make changes to it, that he had not sought the

advice or presence of a lawyer in its preparation, and that he did

not at any time request that his interview be terminated.

In the body of the Statement, Moser explains that he began

chatting with Kelly in a Yahoo! chat room at some point during the

previous year. Moser stated that during the preceding several

months, he had chatted online with Kelly once or twice a week. The

two discussed Kelly’s daughters, Lisa and Jessie, whom he believed

to be fourteen or fifteen and twelve or thirteen, respectively.

Specifically, Moser and Kelly discussed providing “safe sex

education” to the girls, which would consist of Moser engaging in

oral, vaginal, and anal intercourse with them. S.J.A. 3-4. Moser

asserted that he was planning to help Kelly with her children’s

education in the hope that he could start a relationship with her.

6
At the end of the Statement, Moser thanked the agents for arresting

him before he could make the biggest mistake of his life.

Moser was indicted by the grand jury on September 22, 2005,

and he filed a motion to suppress the Statement on October 7, 2005.

On November 21, 2005, the court conducted an evidentiary hearing on

Moser’s suppression motion and denied it from the bench. In so

ruling, the court concluded that the Statement “was voluntary, made

after the appropriate advice of Miranda warnings, and that

[Moser’s] will to make those statements was not in [any] way

overborne or his capacity for self-determination critically

impaired by any type of coercive Government conduct.” J.A. 97-98.

The court also determined that Moser was “clearly . . . advised of

his right to stop,” that he had failed to show any proof of

intimidation, and that he was not “credible [in] indicating that he

was overly pressured.” Id. at 96-97.

The Statement was introduced into evidence at Moser’s jury

trial in Baltimore. On January 9, 2006, the jury returned a guilty

verdict on all three counts of the Indictment. Thereafter, on

March 31, 2006, Moser was sentenced to a total of 360 months of

imprisonment.5 He timely noted this appeal on April 7, 2006, and

we possess jurisdiction pursuant to 28 U.S.C. § 1291.

5
Moser was sentenced to concurrent terms of imprisonment of
235 months on Count One, 235 months on Count Two, and 360 months on
Count Three.

7
 II.

In assessing a district court’s ruling on a suppression

motion, “[w]e review . . . factual findings for clear error and .

. . legal determinations de novo.” United States v. Jarrett, 338

F.3d 339, 343-44 (4th Cir. 2003) (citations omitted). Accordingly,

“[i]n reviewing the denial of [a] motion to suppress, we must

accept the factual findings of the district court unless clearly

erroneous, but we review de novo the conclusion of the district

court that . . . statements were voluntary.” United States v.

Mashburn, 406 F.3d 303, 306 (4th Cir. 2005).

When an assertion of appellate error is made concerning a

trial court’s unobjected-to instruction, we review that contention

for plain error only. In so doing, we apply the principles of

United States v. Olano, assessing: (1) whether there was error;

(2) whether it was plain; and (3) whether it affected the

defendant’s substantial rights. 507 U.S. 725, 732 (1993). If

these conditions are satisfied, we may exercise our discretion to

notice the error, but only if it “seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings.” Id.

(citations and internal quotation marks omitted). On plain error

review, “[i]t is the defendant rather than the Government who bears

the burden of persuasion.” Id. at 734.

8
 III.

A.

The issue of whether Moser’s Statement was properly admitted

into evidence turns on whether the district court properly ruled

that he gave it to the agents voluntarily. Under the Fifth

Amendment, “[n]o person . . . shall be compelled in any criminal

case to be a witness against himself . . . without due process of

law.” U.S. Const. amend V. A statement of an accused, however, is

“involuntary under the Fifth Amendment only if it is ‘involuntary’

within the meaning of the Due Process Clause.” United States v.

Braxton, 112 F.3d 777, 780 (4th Cir. 1997) (en banc) (citing Oregon

v. Elstad, 470 U.S. 298, 304 (1985)). We assess such a

voluntariness issue by examining de novo the “totality of the

circumstances,” including the “characteristics of the defendant,

the setting of the interview, and the details of the

interrogation.” United States v. Pelton, 835 F.2d 1067, 1071 (4th

Cir. 1987) (citing United States v. Wertz, 625 F.2d 1128, 1134 (4th

Cir. 1980)). Under the totality of the circumstances, a statement

is involuntary if the accused’s will was “overborne” or his

“capacity for self-determination critically impaired.” Schneckloth

v. Bustamonte, 412 U.S. 218, 225 (1973). As the Supreme Court

observed in Colorado v. Connelly, “coercive police activity is a

necessary predicate to the finding that a confession is not

9
‘voluntary’ within the meaning of the Due Process Clause.” 479

U.S. 157, 167 (1986).

Moser contends on appeal that, when he gave the Statement, his

will was overborne and his capacity for self-determination

critically impaired due to the length of his interview, because he

ate insufficiently during it, and because he had only slept a few

hours prior to his arrest. Moser also contends that the agents

pressured him into giving the Statement by telling him that Kelly

and her daughters had already given statements. Accordingly, Moser

asserts that the district court erred in concluding that the

Statement “was voluntary, made after the appropriate advice of

Miranda warnings, and that [Moser’s] will to make those statements

was not in [any] way overborne or his capacity for self-

determination critically impaired by any type of coercive

Government conduct.” J.A. 97-98.

Under the totality of the relevant circumstances, Moser has

failed to demonstrate any coercive Government conduct. During his

interview, Moser was permitted to take numerous restroom breaks and

to compose himself, and he was encouraged to eat and drink. Moser

was not intoxicated, sick, or hurt during the interview and, under

the circumstances, its duration was not excessive. Indeed, Moser

never indicated that he was too tired to continue, and he

acknowledged that he was accustomed to being awake during the late

night hours. Importantly, it is undisputed that Moser was fully

10
advised of his Miranda rights and signed two forms spelling out his

understanding of those rights and his desire to give a statement.

Moser also maintains that he was pressured into giving his

Statement when Inspector Gerber and Agent Aquino asserted that

Kelly and her daughters had already made statements. The district

court, however, concluded that Moser was not “credible [in]

indicating that he was overly pressured.” J.A. 96-97. We are, of

course, obliged to accept the court’s findings of fact unless they

are clearly erroneous. Pelton, 835 F.2d at 1072 (citations

omitted). Under these circumstances, those facts are not clearly

erroneous, and the agents thus did not utilize any coercive

tactics, violence, improper threats, or promises to elicit Moser’s

challenged Statement. Accordingly, we reject his contention that

the Statement was made involuntarily and sustain its admission

against him at trial.

B.

Moser next contends that his conviction on Count Three is

invalid because the district court erroneously instructed the jury

on the meaning of the term “control” under the statute. See 18

U.S.C. § 2251A(b)(2).6 Specifically, Moser maintains that the

instructions erroneously conflated the element of control, on the

6
As noted above, Count Three charged Moser with “offer[ing] to
obtain control of a minor, with [the] intent to promote the
engaging in of sexually explicit conduct by such minor for the
purpose of producing visual depictions of such conduct.” J.A. 10.

11
one hand, and the element of sexual intent, on the other,

impermissibly reducing the prosecution’s burden of proof.

On Count Three, the court instructed the jury that, in order

for the prosecution to sustain its burden of proof, it was obliged

to prove six essential elements beyond a reasonable doubt. J.A.

832. This list of essential elements began: “One, that the

defendant offered to obtain control over a minor. Two, that he did

so with the intent to promote the engaging in of sexually explicit

conduct by a minor.” Id. After listing the other four essential

elements, the court also instructed the jury, in relevant part,

that “[c]ontrol means the power to manage, command, direct or

restrain another person.” Id. The court instructed the jury “that

engaging in sexually explicit conduct with a minor is in fact

obtaining control.” Id. at 833. It cautioned the jury, however,

that if “you find that the Government has not proved that the

defendant intended to engage in such conduct, then you must find

him not guilty of the charge in Count III.” Id. More

specifically, the court instructed the jury that if it found

that Mr. Moser did offer to obtain control over persons
he believed to be either a 14-year-old named Lisa Mason
or a 12-year-old named Jessie Mason as I have defined
obtaining control and that he did so with the intent to
promote the engaging in of sexually explicit conduct for
the purpose of creating a visual depiction thereof, then
you may find him guilty of the offense charged in Count
III even though he did not actually engage in sexually
explicit conduct with a minor as long as you find beyond
a reasonable doubt that the Government has proven all the
elements of the offense as I have outlined them for you.

12
Id. (emphasis added).

Moser failed to object to these instructions at trial, and we

thus assess this appellate contention for plain error only. In

reviewing for plain error, we first assess whether any error

occurred at all. Olano, 507 U.S. at 732. This assessment

implicates our decision in United States v. Buculei, where we had

the opportunity to examine the statutory term “custody or control,”

recognizing that the term is defined in 18 U.S.C. § 2256(7) as

“including temporary supervision over or responsibility for a minor

whether legally or illegally obtained.” 262 F.3d 322, 331-32 (4th

Cir. 2001). In Buculei, we observed that “control” under § 2251A

need not be synonymous with parental consent or knowledge, but

“involves something more than mere persuasion, inducement, or

coercion.” Id. at 332. There, as here, the trial court had

instructed the jury that “control” is “the power to manage,

command, direct or restrain another person.” Id. at 332 n.9. We

found no error in that instruction, and concluded that it fairly

represented the pertinent language of the relevant statute.

Because the instructions to Moser’s jury also defined “control” as

“the power to manage, command, direct or restrain another person,”

this aspect thereof was entirely proper. J.A. 832.

The district court in this case also instructed Moser’s jury,

however, “that engaging in sexually explicit conduct with a minor

is in fact obtaining control.” Id. at 833. Moser contends that

13
this aspect of the instructions renders them plainly erroneous, in

that the court conflated the element of control with the separate

element of sexual intent. Additionally, Moser asserts that,

because the evidence reflects that all involved were willing

participants, he did not offer to assume the statutorily requisite

control.

When viewed in isolation, this aspect of the instructions

arguably runs afoul of our conclusion in Buculei that “control”

involves more than mere persuasion. It is well settled, however,

that “we do not examine jury instructions in isolation.” United

States v. Ryan-Webster, 353 F.3d 353, 364 n.17 (4th Cir. 2003); see

also Jones v. United States, 527 U.S. 373, 391 (1999) (cautioning

that “instructions must be evaluated not in isolation but in the

context of the entire charge,” and noting that “instructions that

might be ambiguous in the abstract can be cured when read in

conjunction with other instructions”). Instead, “in reviewing jury

instructions, we ‘accord the district court much discretion and

will not reverse provided that the instructions, taken as a whole,

adequately state the controlling law.’” United States v. Wills,

346 F.3d 476, 492 (4th Cir. 2003) (quoting Teague v. Bakker, 35

F.3d 978, 985 (4th Cir. 1994)). Accordingly, “[o]n appeal, we

examine whether the jury instructions and verdict form, considered

as a whole, were sufficient so that the jurors understood the

issues and were not misled.” United States v. Poirier, 321 F.3d

14
1024, 1032 (11th Cir. 2003)(citations and internal quotation marks

omitted).

Having carefully examined as a whole the trial court’s

instructions relating to Count Three, we are unable to conclude

that they were plainly erroneous. Before giving the jury the

specific instruction that Moser complains of, the court properly

defined control as the “power to manage, command, direct or

restrain another person.” See J.A. 832; Buculei, 262 F.3d at 332

n.9. It also instructed the jury that, in order to convict on

Count Three, it was obliged to find that the prosecution had

satisfied beyond a reasonable doubt all six elements of the offense

charged. These elements included the separate elements of control

and sexual intent. The court further instructed that, in order to

find Moser guilty of Count Three, the jury had to find that he

offered to obtain control over Lisa and Jessie and that he did so

with the intent to promote the engaging in of sexually explicit

conduct for the purpose of creating a visual depiction thereof.

Viewed as a whole, the instructions on Count Three identified

control and sexual intent as two separate and distinct elements

and, accordingly, the instructions complained of were not plainly

erroneous. This appellate contention thus fails and we need not

address the other Olano factors.7

7
Even if plain error had occurred here, we would be unable to
recognize it in this case. The evidence that Moser offered to
obtain control over Lisa and Jessie was overwhelming and permitted

15
 IV.

Pursuant to the foregoing, we reject Moser’s contentions of

error and affirm.

AFFIRMED

no other conclusion than that reached by the jury. See, e.g.,
United States v. Cedelle, 89 F.3d 181, 186 (4th Cir. 1996)
(concluding that when district court fails to charge jury on
element of offense of conviction, we will not notice error if
evidence would “permit no other conclusion” and defendant’s
conviction “was inevitable”).

16