[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12530 ELEVENTH CIRCUIT
APRIL 14, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-00225-CR-ORL-35KRS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE O. RIVERA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 14, 2010)
Before BLACK, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Jose O. Rivera appeals from his conviction for attempt to persuade, induce,
or entice a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b).
On appeal, Rivera argues that the district court erred in denying his motion to
suppress post-Miranda1 statements that he made to a police officer. Specifically,
Rivera argues that any waiver of his Miranda rights was involuntary because,
immediately before he signed a form acknowledging that he understood his rights
under Miranda, a police officer caused him distress by falsely informing him that a
minor girl, with whom Rivera had planned to meet, was missing. In support of this
argument, Rivera points to media reports that minor girls who lived in Florida were
reported missing in 2008 and 2009, and contends that these media reports
heightened his distress upon hearing the officer’s false statement.
Rivera also argues that the district court erred in denying his motion for a
judgment of acquittal under Fed.R.Crim.P. 29, because the evidence did not show
that he specifically intended to induce a minor girl into engaging in sexual activity.
In support of this argument, he asserts that the photographs that accompanied the
online profile of the purported minor that he was communicating with depicted a
girl who was older than 14 years old. In addition, he asserts that, when he spoke
with this purported minor on the telephone, she sounded like an adult woman.
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Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
2
Rivera further argues that he did not take a substantial step toward committing this
offense because he merely drove by the location where he had arranged to meet
with the purported minor, and did not slow down or stop at this location.
For the reasons set forth below, we affirm.
I.
A federal grand jury indicted Rivera, charging him with attempt to persuade,
induce, or entice a minor into engaging in sexual activity, in violation of 18 U.S.C.
§ 2422(b). Rivera subsequently filed a motion to suppress statements that he made
to a police officer. In his motion, Rivera explained that, on June 5, 2007, police
officers stopped him because they believed that he had attempted to meet with a
minor girl for the purpose of engaging in sexual activity. Rivera claimed that an
officer placed him into custody, and then interrogated him for nearly 20 minutes
without informing him of his Miranda rights. Rivera argued that, because the
officer subjected him to custodial interrogation without informing him of his
Miranda rights, the statements that he made during this interview should be
suppressed. He did not argue that his statements to the officer were involuntary.
The district court held a hearing regarding Rivera’s motion to suppress. At
the hearing, Michael Spadafora, an agent employed by the Brevard County
Sheriff’s Office, testified that he had been conducting surveillance on June 5 when
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he observed Rivera drive by the location where he had arranged to meet with a
purported minor girl. Spadafora, who was in an undercover vehicle, followed
Rivera and instructed another police officer to stop Rivera. After Rivera was
stopped, Spadafora approached him and informed him that he was not free to
leave. Spadafora told Rivera that he knew that he was there to meet Kaylee, the
purported minor girl with whom he had arranged a meeting. He next informed
Rivera of his rights under Miranda.
During his testimony, Spadafora identified a form as the Brevard County
“Miranda Rights Advisement” form. Spadafora had read Rivera his Miranda
rights from this form, and Rivera had placed a check mark on the form to
acknowledge that he understood his rights. Rivera had also signed and dated the
form. After Rivera signed the form, Spadafora escorted him to the passenger’s
side of a police car and, once Rivera was seated, closed the door. He subsequently
conducted a taped interview with Rivera while they were inside of the police car.
Spadafora averred that, during the interview, he did not threaten Rivera, promise
him anything in exchange for his waiver of his Miranda rights, coerce him, or use
physical force against him. Based on his observation, Spadafora believed that
Rivera had understood his rights and had voluntarily and intelligently waived those
rights.
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On cross-examination, Spadafora clarified that, immediately after Rivera
was stopped, he told Rivera that Kaylee was missing, that he knew that Rivera was
there to meet Kaylee, and that he needed to talk to Rivera about the fact that she
was missing. In his testimony, Spadafora admitted that Kaylee was fictional, and
that he had thus lied to Rivera when he told him that Kaylee was missing. He
explained that he had told Rivera that Kaylee was missing as an interview tactic.
Spadafora confirmed that he told Rivera that Kaylee was missing immediately
before he informed Rivera of his Miranda rights. Based on his observation of
Rivera while they reviewed the Miranda rights on the form, Spadafora believed
that Rivera may have been nervous, but was not “very upset.”
Rivera testified that no one read him Miranda warnings before he got into
the police car and began his interview with Spadafora. He further testified that he
felt “confused and worried” when Spadafora informed him that Kaylee was
missing, and that, due to this false information, he “wasn’t all there” during his
interview with Spadafora.
After the conclusion of the evidence, Rivera argued that the evidence did not
clearly show that he had waived his Miranda rights, but he did not argue that any
waiver of his Miranda rights was involuntary. The court denied Rivera’s motion,
finding that his testimony was not credible. The court found that the documentary
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evidence, as well as an audio recording of Rivera’s interview with Spadafora,
demonstrated that he had knowingly waived his Miranda rights. In addition, the
court noted that, while Rivera had testified that he had felt worried and confused
during his encounter with Spadafora, he had the presence of mind to recall the
nature and timing of the statements that he had made to Spadafora. Accordingly,
the court concluded that Rivera had voluntarily, knowingly, and intelligently
waived his Miranda rights before making statements to Spadafora.
At trial, Spadafora testified that on June 1, 2007, he engaged in an internet
chat session with an individual who identified himself as “Jletsplay27.”
“Jletsplay27” was later identified during the trial as Rivera. Throughout the chat,
Spadafora posed as a 14-year-old female named Kaylee, and used a screen name of
“Kaylee13FL.” During the conversation, Rivera repeatedly asked Kaylee if they
could “hook up.” Kaylee told Rivera that she was 14 years old, and did not want
him to “freak out” about her age. Rivera responded that, based on the photographs
that accompanied Kaylee’s online profile, she looked older than 14 years old. He
also stated that they could still meet if she desired to do so, and that no one would
have to know about it. He then asked Kaylee if she was a police officer, and
informed her that he did not want to go to jail. Rivera next made suggestions to
Kaylee about various sexual activities they could engage in, and asked if he could
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call her. Kaylee gave him her telephone number, but asked him not to call her
without any advance warning because she would be in trouble if her mother found
out about her contact with him. She also informed him that she often would be
available on the internet because school was in recess for the summer. Later that
day, Rivera had a telephone conversation with Vicki Sumlin, a female undercover
agent posing as Kaylee. The government played an audio recording of this
conversation in open court.
On June 4, 2007, Rivera and Kaylee had another online conversation.
During this conversation, Rivera and Kaylee discussed having sex with each other,
and Rivera asked Kaylee about the extent of her previous sexual experience.
Kaylee informed Rivera that her previous sexual experience was limited, and that
her friends had informed her that intercourse was painful. She reiterated her
request that he not call her when her mother was at home because she “would get
in big trouble.” Rivera asked Kaylee if she was willing to meet with him in person,
and she suggested that they meet at the high school on Mustang Way. Rivera asked
Kaylee how she would manage to “get out” in order to meet with him. He also
reasserted his concern that she could be a police officer. Rivera asked if they could
meet on the next day, and Kaylee agreed.
On June 5, 2007, Rivera again contacted Kaylee online. Rivera asked
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Kaylee what time she wanted to meet, and they agreed that they would meet at the
high school at approximately 1:30 p.m. Kaylee informed Rivera that her mother
was at home, but that she would tell her mother that she was going to a friend’s
house. She also told Rivera that she would be wearing a blue skirt and a white top,
and Rivera told Kaylee that he would be driving a white van.
After this conversation with Rivera, Spadafora contacted several additional
police officers in order to set up surveillance on Mustang Way. After setting up
surveillance, Spadafora observed that, just after 1:30, a white van drove by the high
school. The van’s driver’s side window was down, and Spadafora was able to
identify the driver as Rivera based on a photograph that Rivera sent to Kaylee
during their June 1 conversation. As noted above, Spadafora apprehended and
subsequently interviewed Rivera. During this interview, he learned that Rivera’s
home address was approximately 45 to 60 minutes away from the high school on
Mustang Way. Spadafora identified a set of photographs as the photographs that
he used for Kaylee’s profile, and these photographs were published to the jury.
Sumlin testified that she was employed by the Brevard County Sheriff’s
Office, and that she had assisted Spadafora in investigating this case by playing the
role of a 14-year-old female during a telephone conversation with Rivera. On
cross-examination, she testified that she was 35 years’ old.
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After the conclusion of the government’s case, Rivera moved for a judgment
of acquittal under Fed.R.Crim.P. 29. He argued that the evidence showed that he
had not believed that Kaylee was only 14 years old, pointing out that Kaylee
expressly mentioned her age only once during the online conversations. Thus, he
contended that he lacked the specific intent necessary to violate § 2422(b). Rivera
also argued that he did not take a substantial step toward inducing a minor into
engaging in sexual activity because he merely drove by the high school, and there
was no evidence that he slowed down or stopped at the high school. The court
denied the motion, finding that the government had presented sufficient evidence
to permit the case to go to a jury. Rivera did not present any evidence in his own
defense. The jury found Rivera guilty of attempt to persuade, induce, or entice a
minor into engaging in sexual activity. The court sentenced him to a term of 120
months’ imprisonment.
II.
Generally, “we review a district court’s denial of a motion to suppress
evidence as a mixed question of law and fact, with rulings of law reviewed de novo
and findings of fact reviewed for clear error.” United States v. Lindsey, 482 F.3d
1285, 1290 (11th Cir. 2007). In addition, we view the facts “in the light most
favorable to the prevailing party in [the] district court.” Id. It is within the district
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court’s province to make credibility determinations, and these determinations
generally are conclusive unless the court credits “exceedingly improbable”
testimony. United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002)
(quotation omitted).
Where a defendant fails to raise an argument to the district court, we review
the argument on appeal only for plain error. United States v. Young, 350 F.3d
1302, 1305 (11th Cir. 2003) (holding that, because the defendant did not raise a
particular ground for suppression of the evidence before the district court, we
would review the claim only for plain error); see also United States v. Lewis, 492
F.3d 1219, 1222 (11th Cir. 2007) (recognizing that “the simple failure to assert a
right, without any affirmative steps to voluntarily waive the claim, is a forfeiture to
be reviewed under the plain error standard embodied in [Fed.R.Crim.P.] Rule
52(b)”). Under the plain-error standard of review, an appellant must demonstrate
that: (1) an error has occurred, (2) the error was plain, and (3) the error affected
substantial rights. Lewis, 492 F.3d at 1222. If these conditions are met, we may
exercise our discretion to correct the error, but only if it “seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Id. (quotation
omitted).
Under Miranda, officers must advise an individual who is in custody of the
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following: (1) his right to remain silent; (2) that, if he chooses to speak, anything
he says can be used against him in court; (3) his right to consult with a lawyer and
have his lawyer be present during interrogation; and (4) an explanation that, if he is
indigent, a lawyer will be appointed to represent him. 384 U.S. at 467-73, 86 S.Ct.
at 1624-27. Statements obtained in violation of Miranda, whether exculpatory or
inculpatory, are not admissible at trial. Id. at 444, 86 S.Ct. at 1612. The
government must “prove by a preponderance of the evidence that the defendant
waived his rights voluntarily, knowingly, and intelligently.” United States v.
Glover, 431 F.3d 744, 748 (11th Cir. 2005). We have explained that:
The standard for evaluating the voluntariness of a confession is
whether a person made an independent and informed choice of his
own free will, possessing the capability to do so, his will not being
overborne by the pressures and circumstances swirling around him.
Voluntariness depends on the totality of the circumstances and must
be evaluated on a case-by-case basis.
United States v. Castaneda-Castaneda, 729 F.2d 1360, 1363 (11th Cir. 1984)
(quotation omitted). A police officer’s trick, standing alone, will not render a
confession involuntary. Id. at 1363.
Here, because Rivera failed to clearly raise his involuntariness argument
before the district court, we review this argument on appeal for plain error.
Rivera cannot demonstrate error, let alone plain error, because, under the totality of
the circumstances, Spadafora’s statement that Kaylee was missing was not
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sufficient to cause Rivera’s subsequent, post-Miranda statements to be involuntary.
Both the documentary evidence and the audio recording of Rivera’s interview with
Spadafora demonstrated that Rivera was informed of his Miranda rights. By his
own admission, Rivera’s interview with Spadafora was endured for only 20
minutes. It was within this brief time frame that Rivera made inculpatory
statements to Spadafora. Moreover, Spadafora averred that, apart from his
statement that Kaylee was missing, he did not coerce or pressure Rivera into
waiving his Miranda rights and making a statement. Based on this evidence, it
appears that Spadafora did not engage in any coercion apart from stating that
Kaylee was missing, and that there were not any aggravating factors that would
have amplified the coercive potential of this statement. While Rivera contends
that media attention to missing girls in Florida heightened his concern for the
fictional Kaylee, he also states that these actual disappearances occurred in 2008
and 2009, which was well after he was questioned by Spadafora on June 5, 2007.
Accordingly, the district court did not plainly err in denying Rivera’s motion to
suppress.
III.
“We review a verdict challenged for sufficiency of the evidence de novo,
resolving all reasonable inferences in favor of the verdict.” United States v. Yost,
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479 F.3d 815, 818 (11th Cir. 2007). We will not “disturb the verdict unless no trier
of fact could have found guilt beyond a reasonable doubt. Id. (quotation omitted).
Under 18 U.S.C. § 2422(b), it is illegal for an individual to attempt to
knowingly persuade, induce, entice, or coerce any individual under the age of 18 to
engage in illicit sexual activity. 18 U.S.C. § 2422(b). “The underlying criminal
conduct that Congress expressly proscribed in passing § 2422(b) is the persuasion,
inducement, enticement, or coercion of the minor rather than the sex act itself.”
United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004). Thus, if a
defendant persuaded a minor to engage in an illicit sexual activity, but did not
actually engage in a sex act, he still would have violated § 2422(b). Id. An actual
minor need not be involved in a case in order for a defendant to be found guilty of
attempt under § 2422(b). United States v. Root, 296 F.3d 1222, 1228 (11th Cir.
2002).
In order to sustain a conviction for attempt, the government must show that
the defendant: (1) specifically intended to commit the crime charged, and (2) took
a substantial step toward committing the offense. Yost, 479 F.3d at 819. A
defendant takes a substantial step toward committing an offense where his
“objective acts mark his conduct as criminal such that his acts as a whole strongly
corroborate the required culpability.” Murrell, 368 F.3d at 1288. In the context of
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examining a defendant’s attempt conviction under § 2422(b), we have held that a
defendant demonstrated his specific intent when, after learning that the purported
minor that he was communicating with was underage, he suggested that they meet
in order to engage in sexual activity. Yost, 479 F.3d at 819. We have also held that
a defendant took a substantial step toward violating § 2422(b) by arranging to meet
with a purported minor at a specific time and place in order to engage in sexual
activity, even though the defendant did not actually arrive at the meeting place. Id.
at 819-20.
Here, the district court did not err by denying Rivera’s Rule 29 motion,
because the evidence was more than sufficient to permit a reasonable jury to
conclude that Rivera had the specific intent to induce a minor into engaging in
sexual conduct, and took a substantial step toward the same. As for Rivera’s
intent, Kaylee expressly informed him that she was 14 years old, and he
acknowledged this information by responding that she looked older than 14 in her
profile photographs. On at least two occasions, Rivera asked Kaylee if she was a
police officer, a concern that he would not have had unless he knew that they were
discussing illegal activity. Although Kaylee may have expressly stated her age
only once, she repeatedly made statements indicating that she was a minor—she
informed Rivera that she would be in trouble if her mother found about their
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communications, and that she was on the internet because school was in recess for
the summer. Rivera implicitly acknowledged that Kaylee was under a guardian’s
care when he asked her how she would manage to “get out” in order to meet with
him. The foregoing facts leave little doubt that Rivera specifically intended to
meet with a minor in order to persuade her to engage in sexual activity. While
Rivera argues that Kaylee did not look like she was only 14 years old in her
pictures, and did not sound like a 14-year-old on the telephone, the photographs
and audio recording of the telephone call were presented to the jury, and the other
evidence presented at trial supports the jury’s verdict.
In addition, Rivera took a substantial step toward violating § 2422(b) by
taking the following actions: (1) making sexually explicit statements to Kaylee;
(2) calling her on the telephone; (3) making plans to meet with her at a specific
time and place; and (4) driving past the meeting location, which was at least 45
minutes away from his home, at the specified time. Accordingly, his conviction is
affirmed.
AFFIRMED.
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