[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 30, 2007
No. 06-15750 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00171-CR-01-BBM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARK A. GROSSMAN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(May 30, 2007)
Before DUBINA, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Appellant Mark Grossman (“Grossman”) appeals his convictions for
attempting to entice a minor for sexual activity, in violation of 18 U.S.C. § 2422(b),
and crossing state lines with the intent to engage in sexual activity with a person
under 12 years of age, in violation of 18 U.S.C. § 2241(c). The evidence presented
at pre-trial hearings and at Grossman’s trial demonstrate the following. As part of
his job, a special agent with the Federal Bureau of Investigation (“FBI”) entered an
internet chat room called “preteen, baby, and toddler sex” and assumed the identity
of a 31-year-old woman with a 9-year-old daughter. In the chat room, Grossman
initiated a one-on-one conversation with the agent and expressed an interest in
engaging in sexual activity with the 9-year-old daughter. After several more
conversations, Grossman indicated that he would drive from his home in Florida to
meet the woman and her daughter in a certain restaurant parking lot in Buford,
Georgia. Grossman indicated that he would bring lubricant, among other items. On
the day of the planned meeting, agents waited for Grossman at the restaurant
parking lot. Upon his arrival, the agents arrested Grossman. The agents also staged
the arrest of a female FBI agent posing as the 31-year-old woman. Likewise, an
agent loudly stated near Grossman that the 9-year-old had been placed in protective
custody.
After his arrest, Grossman was transported to FBI headquarters in Atlanta
2
and interviewed by two agents. At the interview, the agents informed Grossman
that they were investigating crimes of sexual exploitation of children. An agent
then read Grossman a list of his rights that included a waiver provision. Grossman
indicated that he understood these rights and did not have any questions concerning
them and then initialed each enumerated right and signed the waiver provision.
During the interview, the agents did not use any physical force or make any
promises to get him to sign the waiver form. Grossman answered some questions,
but eventually asked for an attorney. At that point, the interrogation ceased. The
agents never informed Grossman that the 31-year-old woman and 9-year-old child
did not exist. The entire interview lasted 20 minutes. During it, Grossman
appeared to be thinking clearly and logically.
Also after his arrest, an agent drove Grossman’s car to the FBI headquarters,
where the agents searched the car. The agents did not have a search warrant. The
FBI, however, had a policy of impounding an arrestee’s car and making an
inventory of the items contained therein to protect the arrestee’s personal property
and to protect itself from claims of theft. Inside Grossman’s car, the agents found
lubricant, Viagra, and a laptop computer, among other items.
Grossman’s defense at his trial was that he never intended to engage in sexual
activity with the 9-year-old girl, but only intended to have sex with the 31-year-old
3
woman. Accordingly, the government presented the testimony of another minor
whose mother previously dated and lived with Grossman. This minor testified that
she had awoken one night and found Grossman sitting next to her bed. Grossman
removed her underwear and then touched and licked her vagina. Before admitting
this testimony, the district court considered its prejudicial effect and ruled that is
probative value to the trial outweighed any chance of undue prejudice. Likewise,
after this testimony, the district court instructed the jury only to consider this
evidence as it related to Grossman’s intent to commit the offense with which he was
charged. At the close of the trial, the district court repeated this limiting instruction.
On appeal, Grossman argues that (1) his statements made during a post-arrest
interrogation should have been suppressed, as they were not made voluntarily; (2)
items seized from his car should have been suppressed; and (3) the testimony of
another minor that Grossman previously had molested her should have been
suppressed, as its prejudicial effect greatly outweighed its probative value.
Post-arrest Statements
The voluntariness of a confession is a question of law that we review de
novo. United States v. Barbour, 70 F.3d 580, 584 (11th Cir. 1995). In Miranda v.
Arizona, 384 U.S. 436, 444-445, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694 (1966), the
Supreme Court held that prior to any custodial interrogation, a person “must be
4
warned that he has a right to remain silent, that any statement he does make may be
used as evidence against him, and that he has a right to the presence of an attorney,
either retained or appointed.” If the person indicates at any point that he wishes to
consult with an attorney before speaking, the interrogation must cease. The person,
however, may waive his rights, “provided the waiver is made voluntarily,
knowingly and intelligently.” Id. at 444, 86 S. Ct. at 1612. The Supreme Court
later explained that the waiver is effective if the totality of the circumstances
demonstrate that (1) it was voluntary “in the sense that it was the product of a free
and deliberate choice rather than intimidation, coercion, or deception,” and (2) it
was made “with a full awareness of both the nature of the right being abandoned
and the consequences of the decision to abandon it.” Moran v. Burbine, 475 U.S.
412, 421, 106 S. Ct. 1135, 1141, 89 L. Ed. 2d 410 (1986).
In determining whether post-arrest statements were voluntary, we look to the
“totality of the circumstances” and consider factors including whether the defendant
was subjected to “an exhaustingly long interrogation,” whether the interrogators
applied physical force to the defendant or threatened to do so, and whether the
interrogators made promises to induce the defendant’s statements. United States v.
Thompson, 422 F.3d 1285, 1295-96 (11th Cir. 2005), cert. denied, 127 S. Ct. 748
(2006). Likewise, we consider the person’s knowledge of the “substance of the
5
charge” against him. West v. United States, 399 F.2d 467, 469 (5th Cir. 1968)
(determining the voluntariness of a juvenile’s confession). Furthermore, in
analyzing whether deception by the police undermined the voluntary nature of a
statement, we have held that “the police’s use of a trick alone will not render a
confession involuntary.” United States v. Castaneda-Castaneda, 729 F.2d 1360,
1363 (11th Cir. 1984).
Here, the record demonstrates that Grossman’s waiver of his right to silence
and counsel was knowing, voluntary, and intelligent, such that his post-arrest
statements were admissible. See Miranda, 384 U.S. at 444-445, 86 S. Ct. at 1612.
Before questioning Grossman, the FBI agent read him a list of rights. Grossman
initialed each of these rights and signed a waiver form. The totality of the evidence
suggests that this waiver was the product of free will rather than coercion. See
Burbine, 475 U.S. at 421, 106 S. Ct. at 1141; Thompson, 422 F.3d at 1295 -1296.
Grossman only was interviewed for 20 minutes, the FBI agents who interrogated
him did not use physical force or make any promises, and Grossman was informed
of the general substance of the charge against him. See West, 399 F.2d at 469;
Thompson, 422 F.3d at 1295-96. The agents’ use of the ruse that a real mother and
daughter were involved, that the mother was arrested, and that the daughter was
placed in protective custody does not diminish the non-coercive nature of the
6
interview. See Castaneda-Castaneda, 729 F.2d at 1363.
Likewise, the totality of the evidence in the record suggests that the waiver
was not the product of a lack of comprehension. See Burbine, 475 U.S. at 421, 106
S. Ct. at 1141; Thompson, 422 F.3d at 1295-96. Rather, Grossman indicated that he
understood his rights and had no questions about these rights and appeared to be
thinking clearly and logically. Accordingly, because Grossman waived his rights
and the totality of the circumstances demonstrates that his waiver was knowing,
voluntary, and intelligent, we hold that his post-arrest statements were voluntary.
See Burbine, 475 U.S. at 421, 106 S. Ct. at 1141; Thompson, 422 F.3d at 1295-96;
Barbour, 70 F.3d at 584.
Search of Car and Seizure of Items in Car
“A district court’s denial of a motion to suppress presents a mixed question
of law and fact.” United States v. Behety, 32 F.3d 503, 510 (11th Cir. 1994). We
review the district court’s factual findings for clear error and the district court’s
application of law to the facts de novo. Id. In conducting this review, we construe
the facts in a light most favorable to the successful party. Id.
The Supreme Court has held that searches and seizures conducted absent a
search warrant granted by a judicial officer are per se unreasonable under the
Fourth Amendment unless they fall within a limited set of well-defined exceptions.
7
Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576
(1967). One of these exceptions allows the police to conduct a warrantless search
where they have probable cause and there exists exigent circumstances. United
States v. Burgos, 720 F.2d 1520, 1525 (11th Cir. 1983). The purpose of this
exception is to prevent a real danger that evidence might be lost. United States v.
Bulman, 667 F.2d 1374, 1384 (11th Cir. 1982). Probable cause to support such a
warrantless search exists where the facts would “lead a reasonably cautious person
to believe that the search will uncover evidence of a crime.” Burgos, 720 F.2d at
1525 (quotation omitted). The exigent circumstances to support such a warrantless
search stem from “the ability of a vehicle to become mobile.” United States v.
Nixon, 918 F.2d 895, 903 (11th Cir. 1990) (citation omitted).
Another of these exceptions covers inventory searches. Illinois v. Lafayette,
462 U.S. 640, 643, 103 S. Ct. 2605, 2608, 77 L. Ed. 2d 65 (1983). In Sammons v.
Taylor, 967 F.2d 1533 (11th Cir. 1992), this court defined the parameters of this
exception as follows:
Even if an arrestee’s vehicle is not impeding traffic or otherwise
presenting a hazard, a law enforcement officer may impound the
vehicle, so long as the decision to impound is made on the basis of
standard criteria and on the basis of “something other than suspicion of
evidence of criminal activity.” If the vehicle has been lawfully
impounded, the law enforcement officer may conduct an inventory
search, including a search of closed containers, provided the search is
conducted pursuant to standardized criteria.
8
Id. at 1543. We had held that “if an inventory search is otherwise reasonable, its
validity is not vitiated by a police officer’s suspicion that contraband or other
evidence may be found” inside the car. United States v. Staller, 616 F.2d 1284,
1290 (5th Cir. 1980) (citation omitted). There are three interests that justify this
exception, namely (1) protection of the owner’s property that might be in the car,
(2) protection of the police from false claims of lost possessions, and (3) protection
of the police from potential danger. Id. at 1289.
The record demonstrates that the search of Grossman’s car fell within two
exceptions to the warrant requirement. First, the agents had probable cause to
believe that incriminating evidence might be found in Grossman’s car, as he had
indicated that he would bring lubricant to his meeting with the woman and her
daughter, and the car was mobile. See Burgos, 720 F.2d at 1525; Nixon, 918 F.2d at
903. Thus, the items seized from Grossman’s car were admissible under the exigent
circumstances exception. See id. Second, the impoundment and search of
Grossman’s car was conducted pursuant to the FBI’s policy of making an inventory
of an arrestee’s personal property. See Sammons, 967 F.2d at 1543. The fact that
the agents may have expected to find incriminating evidence in his car does not
affect the validity of this search. See Staller, 616 F.2d at 1290. Thus, the items
seized from Grossman’s car also were admissible under the inventory search
9
exception. See Sammons, 967 F.2d at 1543.
Witness’s Testimony of Prior Bad Act
Rule 404(b) of the Federal Rules of Evidence permits the admission of other
crimes, wrongs, or acts as evidence to show, inter alia, motive, preparation,
knowledge, and/or intent, but such evidence is not admissible to show the
“character of a person” or his “action in conformity therewith.” Fed.R.Evid.
404(b); See United States v. Cross, 928 F.2d 1030, 1047-48 n.65 (11th Cir. 1991).
For such “other crimes evidence” to be admissible, (1) it must be relevant to an
issue other than the defendant’s character, (2) the defendant’s commission of the
prior act must be established by sufficient proof, and (3) the probative value of the
evidence must outweigh its prejudicial effect and meet the other requirements of
Fed.R.Evid. 403.1 United States v. Dickerson, 248 F.3d 1036, 1046-1047 (11th
Cir. 2001). To establish the relevance prong of this test where intent is at issue, the
district court must determine “that the extrinsic offense requires the same intent as
the charged offense.” Id. at 1047 (internal quotation and citation omitted). To
establish the proof prong of this test, “the uncorroborated word of an accomplice” is
sufficient. Id. (citation omitted). Finally, to satisfy the Rule 403 prong of this test,
1
Rule 403 provides that: “Although 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.” Fed. R. Evid. 403.
10
the district court may consider the necessity of the evidence to the government’s
case. Id. Moreover, the district court’s “careful limiting instructions” can reduce
the potential prejudice of evidence, such that it is admissible. United States v.
Palmer, 809 F.2d 1504, 1505-1506 (11th Cir. 1987). The district court’s admission
of other crimes evidence under Rule 404(b) will not be reversed absent an abuse of
discretion. See Cross, 928 F.2d at 1047.
We conclude from the record that the district court did not abuse its
discretion in admitting the minor’s testimony. See Cross, 928 F.2d at 1047. Her
testimony that Grossman had sexually molested her was relevant to the issue of
Grossman’s intent to engage in sexual activity with the 9-year-old child. The
earlier offense of child molestation and the offenses charged, namely attempting to
entice a child to engage in an act that would constitute child molestation and
crossing state lines to molest a child, involved the same intent and general purpose,
specifically engaging in unlawful sexual acts with a minor. See Dickerson, 248
F.3d at 1046-1047. Also, her testimony alone constituted sufficient proof of the
defendant’s commission of the earlier act of child molestation. See id. Finally, the
probative value of the testimony outweighed its prejudicial effect, in that Grossman
himself put his intent at issue by stating that he did not intend to have sex with the
9-year-old, thereby making the minor’s testimony necessary to the government’s
11
case. Moreover, the district court gave two limiting instructions regarding this
evidence. See Dickerson, 248 F.3d at 1046-1047; Palmer, 809 F.2d at 1505-1506.
The record demonstrates that the district court conducted the required Rule 403
balancing test before admitting the evidence and, therefore, we affirm the district
court’s ruling. See Dickerson, 248 F.3d at 1046-1047.
Conclusion
For the above-stated reasons, we affirm Grossman’s convictions.
AFFIRMED.
12