[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-14825 August 12, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-20040-CR-JLK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDRES ROJAS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 12, 2005)
Before BLACK, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
Andres Rojas appeals his conviction for using a facility of interstate
commerce to entice a person under 18 years of age to engage in criminal sexual
contact, in violation of 18 U.S.C. § 2422(b). Rojas asserts 18 U.S.C. § 2422(b) is
unconstitutionally void for vagueness, because: (1) it fails to clearly define the
proscribed conduct; (2) multiple uses of the word “any” cause the statute to be
ambiguous; and (3) the statute implies the requirement the offense involves some
form of transportation in interstate commerce. Rojas also contends the district
court abused its discretion by permitting the Government to introduce, pursuant to
Federal Rule of Evidence 404(b), uncharged “bad” acts such as conversations
Rojas had with another under-aged female Internet user. The district court did not
err, and we affirm Rojas’s conviction.
I. DISCUSSION
A. 18 U.S.C. § 2422(b)
The interpretation of the constitutionality of § 2422(b) is a question of law
subject to de novo review. See United States v. Panfil, 338 F.3d 1299, 1300 (11th
Cir. 2003). Section 2422(b) provides in relevant part as follows:
Whoever, using . . . any facility or means of interstate . . . commerce, . . .
knowingly persuades, induces, entices, or coerces any individual who has
not attained the age of 18 years, to engage in . . . any sexual activity for
which any person can be charged with a criminal offense, or attempts to do
so, shall be . . . imprisoned not less than 5 years and not more than 30 years.
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18 U.S.C. § 2422(b) (emphasis added). “The void-for-vagueness doctrine requires
that a penal statute ‘define the criminal offense with sufficient definiteness that
ordinary people can understand what conduct is prohibited and in a manner that
does not encourage arbitrary and discriminatory enforcement.’” United States v.
Marte, 356 F.3d 1336, 1342 (11th Cir. 2004) (citation omitted).
We recently held 18 U.S.C. § 2422(b) was not unconstitutionally overbroad
or vague. Panfil, 338 F.3d at 1301. In Panfil, the defendant, like Rojas, used the
Internet to persuade an agent, who was posing as a 13-year-old girl, to meet him to
engage in sexual activity. Id. at 1300. The defendant in Panfil asserted 18 U.S.C.
§ 2422(b) was unconstitutionally overbroad and vague by relying on Reno v.
ACLU, 117 S. Ct. 2329 (1997), in which the Supreme Court invalidated provisions
of the Communications Decency Act (CDA), 47 U.S.C. §§ 223 et seq. Panfil, 338
F.3d at 1301. In Reno, the Supreme Court ruled because the CDA “effectively
suppresse[d] a large amount of speech that adults have a constitutional right to
receive and to address to one another,” the CDA might prohibit a parent from
sending contraceptive information over the internet to his teenager. Reno, 117 S.
Ct. at 2346–48. In ruling the CDA was overbroad, the Supreme Court focused on
the terms “indecent” and “patently offensive,” which the Court found were not
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specifically defined so that such terms encompassed material with serious
educational and other value. Reno, 117 S. Ct. at 2347.
Similarly, the defendant in Panfil contended because the terms “entice” and
“induce” used in 18 U.S.C. § 2422(b) were not defined internally or by cross-
reference, the statute had a chilling effect on those who wish to engage in
legitimate speech with minors on sexual topics. Panfil, 338 F.3d at 1301.
However, we held § 2422(b) did not suffer from the same constitutional infirmity
as the CDA because in § 2422(b) “[t]he words ‘entice’ and ‘induce’ [were] not
ambiguous or subject to varying standards.” Id.
The defendant in Panfil also asserted 18 U.S.C. § 2422(b) was void for
vagueness. He argued “the same failure to define ‘entice’ and ‘induce,’ as well as
‘sexual activity for which any person can be charged with a criminal offense’ le[ft]
ordinary citizens to guess at what communications would constitute illegal
enticement or inducement.” Id. In response, we held the terms cited by the
defendant in Panfil had plain and ordinary meaning and the statute discouraged
unscrupulous enforcement by ensuring “that only those who ‘knowingly’
engage[d] in the illegal conduct are subject to prosecution.” Id.
Section 2422(b) is not unconstitutionally vague. The statute clearly states
the proscribed conduct, as admitted to by Rojas, as using a facility of interstate
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commerce to entice a person under 18 years of age to engage in criminal sexual
contact. Regarding the interstate commerce requirement, Rojas stipulated and
agreed that the “Internet is a facility or means of interstate and foreign commerce.”
The multiple uses of the word “any” within 18 U.S.C. § 2422(b) do not render the
statute unconstitutionally vague. Even though the Panfil defendant focused on the
words “entice” and “induce” in arguing the statute was unconstitutionally vague,
we dismissed the defendant’s argument by holding the phrase “sexual activity for
which any person can be charged with a criminal offense” discourages
unscrupulous enforcement by ensuring “only those who ‘knowingly’ engage[d] in
the illegal conduct are subject to prosecution.” See Panfil, 338 F.3d at 1301. At
trial, Rojas stated he recognized the boundaries of the law regarding the legality of
oral sex between him and a 13-year-old girl. See Marte, 356 F.3d at 1342.
Moreover, Rojas acknowledged having sex with a minor is illegal. The uses of
“any” in the statute define the criminal offense with sufficient definiteness by
stating who is subject to the statute and what conduct is prohibited. See Panfil, 338
F.3d at 1301. The manner in which the other uses of “any” are used does not
encourage arbitrary and discriminatory enforcement since the statute applies only
to those who “knowingly” engage in the illegal conduct. See id.
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B. Rule 404(b)
We review the district court’s rulings on admission of evidence for an abuse
of discretion. United States v. Henderson, 409 F.3d 1293, 1297 (11th Cir. 2005).
Federal Rule of Evidence 404(b) “is a rule of inclusion, and . . . accordingly 404(b)
evidence, like other relevant evidence, should not be excluded when it is central to
the prosecution’s case.” United States v. Jernigan, 341 F.3d 1273, 1280 (11th Cir.
2003) (internal citations and quotations omitted). The rule states:
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident . . . .
Fed. R. Evid. 404(b). We have established that, to be admissible: (1) Rule 404(b)
evidence must be relevant to an issue other than the defendant’s character; (2) the
prior act must be proved sufficiently to permit a jury determination the defendant
committed the act; and (3) the evidence’s probative value cannot be substantially
outweighed by its undue prejudice, and it must satisfy Rule 403.1 Jernigan, 341
F.3d at 1280.
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Federal Rule of Evidence 403 provides, “[a]lthough relevant, evidence may be excluded
if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.”
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Regarding the first prong, similarity of extrinsic acts to the offenses with
which the defendant is charged is the standard by which relevancy is measured
under 404(b). United States v. Williams, 816 F.2d 1527, 1531 (11th Cir. 1987).
Regarding the third prong, we have stated, “the probative value of the evidence
must not be substantially outweighed by unfair prejudice. . . . [T]his determination
lies within the sound discretion of the district judge and calls for a common sense
assessment of all the circumstances surrounding the extrinsic offense, including
prosecutorial need, overall similarity between the extrinsic act and the charged
offense, as well as temporal remoteness.” Jernigan, 341 F.3d at 1282 (internal
citations and quotations omitted) (emphasis in original).
The district court did not abuse its discretion in admitting evidence of
Rojas’s chats with another under-aged Internet user, mariamiagirl. The evidence
was relevant to show Rojas’s intent to engage in sexual activity with an under-aged
girl since, as admitted by Rojas, he knew at the time that mariamiagirl was 14 years
old, and he had asked mariamiagirl some of the same sexuall- explicit questions
that he had asked lisa_n_miami. See Jernigan, 341 F.3d at 1280. Moreover, the
evidence, as a prior act, was sufficiently proved to permit a jury determination that
Rojas communicated with mariamiagirl in the same way and manner he
communicated with lisa_n_miami since the Agent acting as mariamiagirl testified
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to the communication with Rojas, the Agent presented printouts of his
communication with Rojas, and Rojas admitted to asking mariamiagirl some of the
same sexually explicit questions he had asked lisa_n_miami. See Jernigan, 341
F.3d at 1280. Lastly, the evidence’s probative value was not substantially
outweighed by its undue prejudice since the evidence was similar to Rojas’s illegal
conduct with lisa_n_miami, and since Rojas stated in his defense he was not
looking for under-aged girls on the Internet, was not picturing an under-aged girl in
his head, and had no intention of engaging in sexual conduct with an under-aged
girl. Thus, the evidence was needed by the prosecution to show Rojas’s intent to
have sexual contact with under-aged girls. See Jernigan, 341 F.3d at 1280–82.
II. CONCLUSION
We conclude 18 U.S.C. § 2422(b) is not unconstitutionally void for
vagueness. Additionally, the district court did not err in admitting as evidence
conversations Rojas had with another under-aged female Internet user.
AFFIRMED.
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