[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10865 ELEVENTH CIRCUIT
Non-Argument Calendar NOVEMBER 10, 2010
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:09-cr-20648-PAS-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
CARLOS MAURICIO ABARCA,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(November 10, 2010)
Before BLACK, HULL and MARTIN, Circuit Judges.
PER CURIAM:
Carlos Abarca appeals his convictions for one count of attempting to
persuade, entice, or coerce a minor to engage in unlawful sexual activity, in
violation of 18 U.S.C. § 2422(b), and two counts of attempting to transfer obscene
material to a minor, in violation of 18 U.S.C. § 1470. Abarca raises two issues on
appeal, which we address in turn.
I.
Abarca first asserts the district court erred by refusing to allow him to
present testimony by an FBI case agent regarding the search of his computer.
Specifically, Abarca contends he should have been allowed to present the
testimony—which the district court concluded was inadmissible hearsay—because
it was relevant to his defense.1
Pursuant to the Fifth and Sixth Amendments, a defendant has the right to
call witnesses in his defense, and must generally be permitted to introduce
evidence pertaining to any elements of the charged offense or an affirmative
defense. United States v. Hurn, 368 F.3d 1359, 1362-63 (11th Cir. 2004).
However, the accused does not have an unfettered right to offer testimony that is
1
We review a district court’s evidentiary ruling for abuse of discretion. United States v.
Baker, 432 F.3d 1189, 1202 (11th Cir. 2005).
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incompetent, privileged, or otherwise inadmissible under standard rules of
evidence. Taylor v. Illinois, 484 U.S. 400, 410 (1988).
We conclude the district court did not abuse its discretion in refusing to
allow Abarca to present the case agent’s testimony regarding the results of the
government’s search of Abarca’s computer. The case agent did not personally
search the computer; thus, the agent’s testimony would have been inadmissible
hearsay. See Taylor, 484 U.S. at 410. Furthermore, the exclusion of the testimony
did not violate Abarca’s constitutional right to a fair trial because the case agent’s
testimony would not have incriminated Abarca, and the exclusion of the case
agent’s testimony did not prevent Abarca from making his defense. See United
States v. Thomas, 62 F.3d 1332, 1338 (11th Cir. 1995) (holding that the
defendant’s right to a fair trial was not violated by the exclusion of hearsay
statements and noting that the case was distinguishable from Chambers2 and its
progeny because the witnesses’ statements did not tend to incriminate them, and
that the exclusion of the testimony did not prevent the defendants from making
their defense).
2
Chambers v. Mississippi, 410 U.S. 284, 302-03 (1973).
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II.
Abarca next asserts the district court erred in its instructions to the jury on
two separate grounds. First, Abarca claims the district court’s jury instruction
regarding what constituted a substantial step with respect to the § 2422(b) count
was erroneous and misled the jury. Specifically, he contends the district court’s
instruction improperly led the jury to believe that a substantial step could be
committed solely through communications. Second, Abarca argues the district
court’s entrapment jury instruction was erroneous and misled the jury because the
court refused to include the language, “existence of prior related offenses is
relevant, but not dispositive.”3
A. Substantial Step Jury Instruction
In United States v. Yost, we addressed whether the defendant’s conduct
constituted a substantial step towards violating § 2422(b). 479 F.3d 815, 819-20
(11th Cir. 2007). The defendant in Yost made sexually explicit comments to an
undercover agent posing as a child, posted a picture of his genitalia, called her on
the telephone, and made arrangements to meet her so they could engage in sexual
3
We review a district court’s rejection of a requested jury instruction for abuse of
discretion. United States v. Moore, 525 F.3d 1033, 1046 (11th Cir. 2008). However, we review
the legal correctness of a jury instruction de novo. United States v. Prather, 205 F.3d 1265, 1270
(11th Cir. 2000).
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activity. Id. at 820. We found that the totality of these acts constituted a
substantial step in an attempt to knowingly persuade, induce, entice, or coerce a
minor to engage in criminal sexual activity. Furthermore, we specifically rejected
the defendant’s argument that his failure to arrive at the meeting place precluded a
finding of a substantial step, holding that neither travel nor an actual meeting is
necessary to find that a defendant committed a substantial step in these
circumstances. Id.
We conclude the district court’s instruction is consistent with our precedent
in Yost. The district court noted that the jury may consider the nature and the
context of Abarca’s internet, e-mail, and telephone conversations with the
undercover agent and whether he made arrangements for any meeting. Further,
the court noted that an actual meeting was not necessary for a defendant’s conduct
to constitute a substantial step. Thus, the district court did not err in its substantial
step instruction to the jury.
B. Entrapment Jury Instruction
An affirmative defense of entrapment requires the defendant to prove two
elements: (1) government inducement of the crime; and (2) lack of predisposition
on the part of the defendant to commit the crime. United States v. Padron, 527
F.3d 1156, 1160 (11th Cir. 2008). We have noted the existence of prior offenses
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is relevant, but not dispositive, in determining predisposition. United States v.
Brown, 43 F.3d 618, 625 (11th cir. 1995).
We conclude the district court did not abuse its discretion by refusing to
give Abarca’s requested addition to the entrapment instruction. The requested
addition lacked an evidentiary basis due to the fact that no evidence had been
adduced relating to the issue of prior crimes. Further, the requested addition was
addressed in the charges actually given to the jury, and the court’s failure to give
the specific instruction requested by Abarca did not impair his ability to present an
effective defense. See United States v. Moore, 525 F.3d 1033, 1046 (11th Cir.
2008); United States v. Garcia, 405 F.3d 1260, 1274 (11th Cir. 2005).
Accordingly, we affirm Abarca’s convictions.
AFFIRMED.
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