[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 23, 2005
No. 04-13726 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 03-00588-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEPHEN EDMUND BOLEN, JR.,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(June 23, 2005)
Before ANDERSON, BIRCH and BARKETT, Circuit Judges.
PER CURIAM:
Stephen Edmund Bolen, Jr. appeals his conviction and 110-month sentence
for using a facility and means of interstate commerce for enticement to commit
child molestation, in violation of 18 U.S.C. § 2422(b). Bolen and the government
stipulated to certain facts: (1) Special Agent Nikki Badolato of the Federal
Bureau of Investigation (“FBI”) used a computer connected to the Internet in an
undercover capacity, posing as a 25-year-old single mother named “Paulina” with
a 3-year-old daughter named “Rachel,” (2) Special Agent Badolato was in an
internet chat room titled “sex with younger” when Bolen contacted her via instant
message, (3) Bolen and Special Agent Badolato engaged in an internet chat that
took place over a number of days, (4) Bolen and Special Agent Badolato
communicated by telephone and finalized their plans to meet, and (5) Bolen had
contact only with an undercover officer posing as an adult and no contact with a
minor or with an undercover officer posing as a minor. The government and
Bolen entered into a written plea agreement, in which Bolen conceded in the
agreement that he was guilty of the crime charged in the indictment and waived
his right to appeal his sentence and the right to collaterally attack his sentence in
any post-conviction proceeding on any ground, except that Bolen reserved the
right to appeal any upward departure and the adverse determinations of his
motions to suppress evidence and dismiss the indictment.
On appeal, Bolen’s primary argument is that § 2422(b) does not prohibit an
individual from arranging to have sex with a minor through communications with
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an adult intermediary, as opposed to direct communications with a minor. Bolen
also argues that § 2422(b) does not prohibit an individual from arranging to have
sex with a fictitious minor. Bolen argues that if the statute is interpreted as
prohibiting such activities it is unconstitutionally vague.
The interpretation of § 2422(b) is a question of law subject to de novo
review. See United States v. Murrell, 368 F.3d 1283, 1285 (11th Cir. 2004).
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.
18 U.S.C. 2422(b).
We have recently held that “direct communication with a minor or supposed
minor is unnecessary under the text of § 2422(b).” Murrell, 368 F.3d at 1288
(11th Cir. 2004) (affirming a conviction under § 2422(b) where the defendant used
the internet to communicate with an undercover agent posing as an adult
intermediary who would arrange for the defendant to engage in various unlawful
sexual activities with a minor). We held that § 2422(b) encompasses conduct
where a defendant arranges to have sex with a minor through communications
with an adult intermediary, including an adult law enforcement agent posing as a
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parent of a minor child. Id. at 1286; see also United States v. Hornaday, 392 F.3d
1306, 1310 (11th Cir. 2004) (stating that, in Murrell, we held that the use of an
adult intermediary, such as an adult law enforcement agent posing as a parent of a
minor child, does not take a defendant’s actions outside the prohibitions of
§ 2422(b)). In Murrell, we reasoned that, in such a situation, by negotiating with
the purported parent of a minor, the defendant attempts “to stimulate or cause the
minor to engage in sexual activity with him,” thereby bringing the defendant’s
conduct within the definition of “induce.” Id. at 1287. We have also recently held
that any argument that § 2422(b) is “void for vagueness insofar as adult
intermediary situations are concerned cannot be reconciled with Murrell’s holding
that the plain language of § 2422(b) clearly applies to those situations.”
Hornaday, 392 F.3d at 1310.
Here, Bolen’s arguments, that § 2422(b) does not prohibit an individual
from arranging to have sex with a minor through communications with an adult
intermediary or from arranging to have sex with a fictitious minor, are without
merit. This argument has been explicitly rejected in cases that were factually
indistinguishable. See Murrell, 368 F.3d at 1286; Hornaday, 392 F.3d at 1310.
Further, we have held that § 2422, as so interpreted, is not unconstitutionally
vague. See Hornaday, 392 F.3d at 1310.
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Bolen next argues on appeal that the district court erred in dismissing his
motion to suppress evidence because the police officers did not have probable
cause to arrest him and conduct a warrantless search incident to arrest. Bolen
bases this argument on the fact that the government and Bolen stipulated that
Bolen had no contact with a minor or with an undercover officer posing as a
minor, contending that, as such, he could not exercise undue influence over a
minor within the plain meaning of § 2422(b).
“This court reviews a district court’s denial of a defendant’s motion to
suppress under a mixed standard of review, reviewing the district court’s findings
of fact under the clearly erroneous standard and the district court’s application of
law to those facts de novo.” United States v. Desir, 257 F.3d 1233, 1235-36 (11th
Cir. 2001).
“Under the Fourth and Fourteenth Amendments, an arresting officer may,
without a warrant, search a person validly arrested.” Michigan v. DeFillippo, 443
U.S. 31, 35, 99 S.Ct. 2627, 2631 (1979). “[T]he Constitution permits an officer to
arrest a suspect without a warrant if there is probable cause to believe that the
suspect has committed or is committing an offense.” Id. at 36, 99 S.Ct. at 2631.
“‘A law enforcement officer has probable cause to arrest a suspect if the facts and
circumstances within the officer’s knowledge, of which he or she has reasonably
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trustworthy information, would cause a prudent person to believe, under the
circumstances shown, that the suspect has committed, is committing, or is about to
commit an offense.’” Williamson v. Mills, 65 F.3d 155, 158 (11th Cir. 1995)
(quoting Von Stein v. Brescher, 904 F.2d 572, 578 (11th Cir. 1990)).
Section 2422(b) prohibits, in relevant part, individuals from using any
facility of interstate commerce from attempting to induce any minor child to
engage in any sexual activity for which any person can be charged with a criminal
offense. 18 U.S.C. 2422(b). As discussed above, we have held that § 2422(b)
encompasses conduct where a defendant arranges to have sex with a minor
through communications with an adult intermediary, including an adult law
enforcement agent posing as a parent of a minor child. The crime of attempt
requires (1) that the defendant had the specific intent to engage in the criminal
conduct for which he is charged and (2) that he took a substantial step toward
commission of the offense. Id.
Here, the agents had probable cause to arrest Bolen because they had
information that would cause a prudent person to believe that Bolen had attempted
to induce a minor child to engage in sexual activity for which any person can be
charged with a criminal offense. Specifically, the agents had information that
Bolen had specific intent to induce a minor to engage in unlawful sexual activity
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in the form of instant message and phone communications in which he negotiated
with the purported mother of a minor for the minor to engage in sexual activity
with him.1 See Murrell, 368 F.3d at 1287. The fact that these negotiations
involved the purported mother of the minor and not the minor herself is if no legal
significance under § 2422(b). See id. at 1286. The agents also had information
that Bolen took a substantial step toward the commission of the offense, in that he
arranged meeting with the purported mother and the minor and arrived at the
meeting site at the planned time. Because the agents had probable cause to arrest
Bolen, the district court did not err in denying Bolen’s motion to suppress
evidence.
Next, Bolen argues that the district court erred in denying Bolen’s motion to
dismiss the indictment as he never communicated with a minor or an undercover
officer posing as a minor.
Whether an indictment sufficiently alleges a statutorily proscribed offense is
a question of law that we review de novo. United States v. Steele, 178 F.3d 1230,
1233 (11th Cir. 1999). An indictment is sufficient if it (1) presents the essential
1
For example, Bolen advised “Paulina,” (1) via instant message, to bring her daughter with
her to their meeting because he wanted to meet them both and he “[t]hought [Paulina] wanted to
show her [his] cock” and, (2) over the phone, that at the planned meeting he wanted to go as far with
“Rachel” as “Paulina” was willing to let him go, specifically stating that he wanted “Rachel” to
perform oral sex on him.
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elements of the charged offense, (2) notifies the accused of the charges to be
defended against, and (3) enables the accused to rely upon a judgment under the
indictment as a bar against double jeopardy for any subsequent prosecution for the
same offense. Id. at 1233-34. This rule “puts the defendant on notice of ‘the
nature and cause of the accusation as required by the Sixth Amendment of the
Constitution . . . [and] it fulfills the Fifth Amendment’s indictment requirement,
ensuring that a grand jury only return an indictment when it finds probable cause
to support all the necessary elements of the crime.” United States v. Fern, 155
F.3d 1318, 1325 (citation omitted).
Here the indictment, that charged Bolen, tracked the language of the statute.
Specifically, it charged him with “using a facility and means of interstate
commerce, that is a computer connected to the Internet, attempted knowingly to
persuade, induce, entice, and coerce an individual who had not attained the age of
18 years to engage in prohibited sexual conduct, that is child molestation . . ., in
violation of Title 18, United States Code, Section 2422(b).” Comparing the
indictment to the charged statute of violation, it is clear that the indictment
sufficiently alleged each element of the offense, that is, (1) using a facility of
interstate commerce, (2) in an attempt, (3) to knowingly induce an individual who
had not attained the age of 18 years, (4) to engage in illegal sexual activity. See
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18 U.S.C. § 2422(b). Because the indictment sufficiently alleged each element of
the offense, it (1) provided adequate notice of the charge, (2) enabled Bolen to rely
upon the judgment under the indictment as a bar against double jeopardy, and (3)
ensured that the grand jury found probable cause to support all the necessary
elements. See Steele, 178 F.3d at 1233-34; Fern, 155 F.3d at 1325. Further, as
discussed above, any finding of probable cause does not constitute legal error
here. Accordingly, the district court did not err in denying Bolen’s motion to
dismiss the indictment for insufficiency.
Last, Bolen argues that, in the event the Supreme Court rules in United
States v. Booker, 543 U.S. ___, 125 S.Ct. 738 (2005), that the Federal Sentencing
Guidelines, or enhancements thereunder, are unconstitutional, this case should be
remanded to the district court for resentencing in accordance with the ruling.
However, Bolen signed an appeal waiver that barred appeal of his sentence unless
the district court departed upward.
We uphold appeal waivers as valid if they are knowingly and voluntarily
entered. United States v. Buchanan, 131 F.3d 1005, 1008 (11th Cir. 1997) (citing
United States v. Bushert, 997 F.2d 1343, 1350 (11th Cir.1993)); see also United
States v. Benitez-Zapata, 131 F.3d 1444, 1446 (11th Cir.1997) (“Waiver will be
enforced if the government demonstrates either: (1) the district court specifically
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questioned the defendant about the waiver during the plea colloquy, or (2) the
record clearly shows that the defendant otherwise understood the full significance
of the waiver.”). Recently, we explained that “the right to appeal a sentence based
on Apprendi/ Booker grounds can be waived in a plea agreement. Broad waiver
language covers those grounds of appeal.” United States v. Rubbo, 396 F.3d
1330, 1335 (11th Cir. 2005) (dismissing the appeal because the broad appeal
waiver provision precluded defendant from raising sentencing issues arising under
Apprendi/Booker line of cases on appeal, and rejecting the argument that those
issues fell within an exception to the appeal waiver in the written plea agreement
for sentences above “statutory maximum” because the parties intended that term to
have its ordinary meaning, namely, a sentence above the maximum in the United
States Code, not the term-of-art definition developed in the Apprendi/Blakely line
of cases); see also United States v. Grinard-Henry, 399 F.3d 1294, 1296-97 (11th
Cir. 2005) (denying the motion to reconsider dismissal of the appeal because the
appeal waiver was knowing and voluntary, the general appeal waiver language
broad enough to include an Apprendi/Blakely/Booker claim, and the claim did not
fall within an exception to an appeal waiver for “a sentence in violation of the law
apart from the sentencing guidelines”).
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Here, the broad appeal waiver provision in the plea agreement encompasses
the sole sentencing issue arising under the Apprendi/Blakely/Booker line of cases.
See Rubbo, 396 F.3d at 1335. The only exceptions to the appeal waiver provision
that were provided in the plea agreement relate to Bolen’s right to appeal an
upward departure from the applicable guideline range and the adverse
determinations of his motion to suppress evidence and his motion to dismiss the
indictment. Bolen’s Booker argument, then, does not satisfy any of the specified
exceptions to the waiver. Moreover, because Bolen (1) has not argued in his
appellate brief that the waiver was not valid because it was not knowing and
voluntary, (2) failed to have his plea colloquy transcribed for a court determination
of whether the waiver was knowing and voluntary, and (3) failed to file a reply
brief in response to the government’s contention that his Booker argument was
waived by the terms of his plea agreement, we conclude that the waiver must be
upheld. See Loren v. Sasser, 309 F.3d 1296, 1304 (11th Cir. 2002) (holding, in
the context of a civil proceeding, that we must affirm the district court when an
appellant fails to provide all the evidence that the district court had before it when
making contested rulings, relying on Fed.R.App.P. 10(b)(2), which provides that if
an appellant intends to urge on appeal that a conclusion is unsupported by the
evidence, the appellant must include in the record a transcript of all evidence
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relevant to that conclusion). Thus, Bolen has waived his right to appeal his
sentence under Booker. As such, we dismiss Bolen’s sentence appeal.
AFFIRMED in part and DISMISSED in part.
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