                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-5277



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


DAVID A. KAYE,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:06-cr-00205-JCC)


Submitted: May 30, 2007                        Decided:   July 6, 2007


Before NIEMEYER, KING, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Peter D. Greenspun, Melinda L. VanLowe, GREENSPUN, DAVIS & LEARY,
P.C., Fairfax, Virginia, for Appellant. Chuck Rosenberg, United
States Attorney, Edmund P. Power, Assistant United States Attorney,
Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            David A. Kaye appeals his convictions after a bench trial

of coercion and enticement of a minor in violation of 18 U.S.C.

§ 2422(b) (2000), and travel with intent to engage in illicit

sexual contact with a minor in violation of 18 U.S.C. § 2423(b)

(2000), and his resulting seventy-eight month sentence.                Kaye

claims the district court erroneously:            (i) denied his pre-trial

motion to dismiss the indictment; (ii) excluded evidence at trial

he claims was exculpatory; and (iii) denied his Fed. R. Civ. P. 29

motion for judgment of acquittal based on the sufficiency of the

evidence.    We affirm.

            At 3:50 a.m. on August 7, 2005, Kaye, a fifty-four year

old resident of Maryland, initiated Internet contact under the

screen name “REDBD” with an individual with the screen name “MadC

Rad1992.”     Upon contact, Kaye immediately inquired whether “MadC

Rad1992” was thirteen years old, to which “MadC Rad1992" responded

in the affirmative and informed Kaye he lived in Herndon, Virginia.

When “MadC Rad1992" inquired whether Kaye could not sleep, Kaye

responded     he    was   “prowling    for    young   men.”   During   this

communication, Kaye and “MadC Rad1992" electronically exchanged

photographs.       “MadC Rad1992" emailed Kaye a photograph of a young

male and Kaye emailed sexually explicit photographs of himself

posing nude and engaging in fellatio with another male.




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           Unbeknownst to Kaye, “MadC Rad1992" was really an adult,

Sean O’Connor. O’Connor was an undercover operative with Perverted

Justice, an online organization dedicated to exposing adults who

use the Internet to seek sexual activity with children. During his

online   chat   with   “MadC    Rad1992,”    Kaye    also    communicated   by

telephone with a person he believed to be “MadC Rad1992,” but who

was really a twenty-four-year-old woman named Alison Shea, another

undercover operative with Perverted Justice.

           Between     August   7,    2005   and    August   17,   2005,   Kaye

communicated via instant messaging with “MadC Rad1992" several

times, each time discussing sexually explicit topics and sexual

acts Kaye and “MadC Rad1992" could perform on one another.             The two

also planned to meet when “MadC Rad1992's” father would not be

home, and on August 17, 2005, Kaye traveled from Maryland to

Herndon, Virginia to meet “MadC Rad1992.”

           Upon entering the Herndon, Virginia home, Kaye was met by

NBC Dateline correspondent, Chris Hansen, who immediately conducted

an interview of Kaye.          When asked by Hansen what he was doing

there, Kaye responded “[n]ot somethin’ good.” Upon questioning why

he came to the home, Kaye responded “[u]m, that I don’t wanna be

. . . look this isn’t good.”         Shortly thereafter, Kaye stopped the

interview and left the home.

           Kaye subsequently contacted America Online to inquire how

he could remove “all aspects of the screen name REDBD from his


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computer.”   Kaye also inquired of his employer’s computer network

manager how he could remove personal items from his computer.

After receiving the information from the manager, Kaye asked if

“there was any way that [she] could guarantee nobody would find”

the information. Kaye’s employer later gave Kaye’s computer to law

enforcement and forensic analysis revealed a portion of the chat

with “MadC Rad1992,” the pictures Kaye sent to him, and driving

directions to the Herndon, Virginia home.

           Kaye claims the district court erred in denying his

motion to dismiss the indictment because:        (i) Kaye could not be

convicted of a violation of § 2422(b) since he interacted at all

times with an adult and not a thirteen year old boy; (ii) § 2422(b)

unconstitutionally criminalized Kaye’s protected speech; (iii)

§ 2423 unconstitutionally criminalized Kaye’s right to travel; and

(iv)   Perverted   Justice’s   failure   to   record   Shea’s   telephone

conversation with Kaye required the indictment be dismissed.          We

review a district court’s denial of a motion to dismiss the

indictment made before trial de novo. See United States v. Loayza,

107 F.3d 257, 260 (4th Cir. 1997).

           Kaye argues he could not be convicted of a violation of

§ 2422(b) because the Government did not prove he was guilty of

§ 18.2-370 since his victim was not a child under fourteen years of

age.    Kaye’s argument is meritless.         Under § 2422(b), it is

unlawful for a person, “using . . . any facility or means of


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interstate    .   .   .   commerce   .   .   .   [to]   knowingly   persuade[],

induce[], entice[] or coerce[] 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

attempt[] to do so . . .”            See 18 U.S.C. § 2422(b) (2000).        To

obtain a conviction under § 2422(b), the Government must also prove

that the additional elements of Va. Code Ann. § 18.2-370, which

makes it unlawful for an individual to take indecent liberties with

a child,1 were satisfied.

             Kaye argues that because it is undisputed he interacted

with adults rather than a child, his behavior did not violate

§ 18.2-370, and therefore could not violate 18 U.S.C. § 2422.

Because the Virginia Supreme Court explicitly ruled in Hix v.

Commonwealth, 619 S.E.2d 80, 83-87 (Va. 2005), that the absence of

an actual child has no bearing on the crime of attempt under

§ 18.2-370, we conclude the district court correctly rejected

Kaye’s argument.




     1
      A violation of § 18.2-370 occurs when “any person eighteen
years of age or over, who, with lascivious intent, knowingly and
intentionally” takes indecent liberties with “any child under the
age of fifteen years.” Va. Code Ann. § 18.2-370. Taking indecent
liberties with a child includes proposing “that any such child
expose his or her sexual or genital parts to such person”, “feel or
fondle the sexual or genital parts of any such child”, perform “an
act of sexual intercourse” or “entice[s], allure[s], persuade[s],
or invite[s] any such child to enter . . . [a] place, for any of
the[se] purposes.” Va. Code Ann. § 18.2-370.

                                      - 5 -
            We also reject Kaye’s arguments that §§ 2422 and 2423 are

unconstitutional as applied to him.           Because these arguments were

made in a supplemental memorandum filed long after the motions

deadline set by the district court pursuant to Fed. R. Crim. P.

12(c), and after oral argument on Kaye’s motion to dismiss the

indictment    took   place,     the   district   court   dismissed   them    as

untimely. In rejecting Kaye’s supplemental arguments, the district

court also noted it nonetheless found Kaye’s arguments meritless.

On appeal, Kaye argues only that the district court erred in its

ruling on the substance of his arguments, but does not challenge

the   district    court’s   finding    the    supplemental     arguments   were

untimely.        Accordingly,    we   conclude   Kaye    has   abandoned    any

challenge to the dismissal of his arguments by the district court.

See United States v. Al-Hamdi, 356 F.3d 564, 571 n.8 (4th Cir.

2004) (“It is a well settled rule that contentions not raised in

the argument section of the opening brief are abandoned.”). In any

event, we have carefully reviewed the district court’s alternative

reasoning that §§ 2422 and 2423 are constitutional as applied to

Kaye, and would reach the same conclusion.

             Kaye also argues the district court erred in denying his

motion to dismiss the indictment for spoliation of evidence because

Perverted Justice’s failure to record a telephone conversation

between Shea and Kaye prevented Kaye “from playing the true,

complete and accurate telephone conversation and proving that he


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was lead to believe, by the speaker’s voice, that he was speaking

with an adult.”    Kaye’s argument is meritless.

           In his motion to dismiss the indictment for spoliation of

evidence, Kaye conceded, as he does on appeal, that dismissing an

indictment for “spoliation of evidence is a drastic remedy that

typically requires that bad faith be proven.”        Cole v. Keller

Indus., Inc., 132 F.3d 1044, 1047 (4th Cir. 1998).   Kaye, however,

neglects to identify any bad faith on the part of Perverted

Justice.

           Moreover, to the extent Kaye argues he was denied due

process by Perverted Justice’s failure to record the conversation,

this argument similarly fails because law enforcement, not a

private actor, must have acted in bad faith before the destruction

of evidence will constitute a due process violation.    See Arizona

v. Youngblood, 488 U.S. 51, 57-58 (1988).     Because there was no

showing that Perverted Justice acted at the direction or under the

control of law enforcement, the district court correctly found that

“[a]ny deficiency in the evidence can be remedied during cross-

examination at trial and considered by the fact-finder.”

           Kaye next claims the district court erred in excluding

evidence of an instant message chat he had with Gregory Brainer,

another Perverted Justice operative, after the Perverted Justice

sting operation.     Kaye claims the chat was a prior consistent

statement that should have been allowed after Kaye was cross-


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examined   by    the    Government     and    his    intention   regarding     the

solicitation questioned, or in the alternative, that the chat log

should have been excepted from hearsay under the residual exception

because it was inherently trustworthy.               Because the conversation

post-dated the sting operation, lacked indicia of reliability, and

since its admission would have far-reaching ramifications, the

district court found the evidence to be inadmissible hearsay.                  The

decision of a district court to admit or exclude evidence is

reviewed for abuse of discretion.            See United States v. Young, 248

F.3d 260, 266 (4th Cir. 2001).          This court will find such abuse of

discretion only if the district court’s evidentiary ruling was

arbitrary or irrational. See United States v. Achiekwelu, 112 F.3d

747, 753 (4th Cir. 1997).          Because Kaye’s chat with Brainer took

place in January or February 2006, five or six months after the

Perverted Justice sting operation, Kaye’s motive to fabricate an

exculpatory explanation for his conduct arose before Kaye’s chat

with Brainer.     Accordingly, we conclude the district court did not

err in excluding evidence of the chat between Kaye and Brainer.

           Kaye’s final contention is that the district court erred

in   denying    his    motion   for   judgment      of   acquittal   because   the

Government produced insufficient evidence regarding Kaye’s intent

to engage in unlawful sexual acts with a minor and to travel in

interstate commerce for that purpose.               We review the denial of a

Rule 29 motion de novo.         See United States v. Alerre, 430 F.3d 681,


                                      - 8 -
693 (4th Cir. 2005), cert. denied, 126 S. Ct. 1925 (2006).               We

conclude there was sufficient evidence to establish Kaye intended

to engage in unlawful sexual acts with a minor and to travel in

interstate commerce for that purpose.

            A review of the trial transcript leaves little room to

doubt that Kaye communicated with “MadC Rad1992” believing he was

a minor, that his communications were an attempt to lure “MadC

Rad1992” into engaging in unlawful sexual acts with him, and that

Kaye traveled from Maryland to Herndon, Virginia intending to lure

“MadC Rad1992” into engaging in sexual acts with him.              As the

district court found, the chat logs of Kaye’s conversations with

“MadC Rad1992” established Kaye first complimented “MadC Rad1992”

on being “cute” and “sweet,” then made “blatant, aggressive sexual

advances” toward him by suggesting various forms of oral and manual

sexual stimulation.

            We conclude the evidence also established Kaye believed

he was communicating with a thirteen-year-old boy.          During Kaye’s

first chat with “MadC Rad1992,” Kaye immediately inquired whether

“MadC Rad1992” was only thirteen, likely inferring his age from the

inclusion   of   “1992"   in   his   screen   name.   In   addition,   Kaye

repeatedly referred to “MadC Rad1992” as “young” and being only

thirteen years of age during their chats, and the chats often

centered around whether and when “MadC Rad1992's” father was home.




                                     - 9 -
This conclusion is bolstered by the manner in which Kaye reacted

upon entering the Herndon, Virginia home.

            Although Kaye claims the evidence was insufficient to

support a conviction because he thought “MadC Rad1992" was an adult

and did not travel to Herndon to engage in sexual acts with him, we

conclude the district court’s disregard of this testimony was a

credibility determination that should not be disturbed on appeal.

See United States v. Lomax, 293 F.3d 701, 706 (4th Cir. 2002).             As

the district court explicitly stated, it “did not find Defendant’s

testimony   to   be   credible   in   its   assessment   of   his   veracity,

demeanor, cadence, tenor, and inflection of his voice as well as

the consistency of his answers on cross examination.” Accordingly,

we conclude the district court correctly denied Kaye’s Rule 29

motion.

            Based on the foregoing, we affirm Kaye’s convictions and

sentence.    We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.



                                                                     AFFIRMED




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