                                                               [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________                       FILED
                                                            U.S. COURT OF APPEALS
                             No. 10-15525                     ELEVENTH CIRCUIT
                         Non-Argument Calendar                   AUGUST 18, 2011
                       ________________________                    JOHN LEY
                                                                    CLERK
                 D.C. Docket No. 3:08-cr-00368-TJC-JRK-1

UNITED STATES OF AMERICA,

                                llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,

                                   versus

DAVID MARSHALL DEAL,
a.k.a. cptliquidice999999,
a.k.a. md,

                             llllllllllllllllllllllllllllllllllllllllDefendant-Appellant.

                       _______________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                             (August 18, 2011)

Before EDMONDSON, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:
      David Deal appeals his convictions for attempting to entice a minor both to

engage in sexual activity, 18 U.S.C. § 2422(b), and to engage in sexually explicit

conduct to produce child pornography, id. § 2251(a), (e). Deal challenges the

denial of his motion to dismiss his indictment, the sufficiency of the evidence to

support his convictions, and evidentiary rulings. Deal also argues that the United

States elicited false testimony from an investigating officer and that the district

court should have instructed the jury about Deal’s potential sentence. We affirm.

      On August 28, 2008, Deal sent an instant message using a screen name

“cptlinquidice999999” to “Alice,” an online persona created by Detective Kurt

Jones, who served on a task force that investigated internet crimes against

children. Jones used grammar typical of a 13 year old girl whose profile he had

created both on Yahoo! and VampireFreaks.com to discuss with Deal topics

ranging from Alice’s age and sexual experience to the appearance of her genitalia.

During nine days of the instant message conversations, most of which Deal

initiated, Deal provided Alice with his cellular telephone number and several

photographs of himself, including one that depicted a registration number on a

boat that Jones traced to Deal. During an online conversation on September 6,

2008, Alice agreed to meet Deal in the parking lot of Dave and Buster’s restaurant.

After Jones observed Deal arrive at the restaurant at the arranged time, Jones sent

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Deal an instant message stating that Alice got caught trying to sneak out of her

house. In the five days of online conversations that followed, Deal became more

graphic in describing how he wanted to photograph Alice and how he wanted to

engage in specific sexual activities with Alice. Deal inquired about Alice’s waist

size, offered to bring her a pair of thong underwear, and said repeatedly that he

would wear a condom during sexual intercourse.

      Alice agreed to meet Deal at Dave and Buster’s restaurant on September 11,

2008, and an investigator arrested Deal in an adjacent parking lot after he drove

through the parking lot of the restaurant. Investigators searched Deal’s vehicle

and discovered in an open backpack a camera, two pairs of thong underwear, and

condoms. Deal later waived his rights to remain silent and to counsel and, when

confronted with evidence of his online conversations, admitted that he had

intended to meet Alice, but asserted he did not intend to harm Alice. Deal

apologized repeatedly, and he wrote in a letter to the prosecutor that he was

“deeply sorry,” he “did not want to do anything to this girl,” and he would “never

do anything like this again and hate to have this on [his] record.”

      Deal was charged in a third superceding indictment with two counts of

transporting videos of child pornography, 18 U.S.C. § 2252(a)(1), attempting to

entice a minor to engage in sexual activity, id. § 2422(b), and attempting to entice

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a minor to engage in sexually explicit conduct to produce child pornography, id.

§ 2251(a), (e). Before trial, the United States dismissed the two distribution

charges. Deal filed motions to suppress the evidence discovered in his vehicle, his

statements to law enforcement, and the letter he wrote to a prosecutor, and he also

moved to dismiss as unconstitutional his charge for violating section 2422(b). The

district court denied Deal’s motions. At trial, the jury found Deal guilty of both

charges of attempted enticement.

      Deal argues that his charge for violating section 2422(b) should have been

dismissed on the ground that the statute is unconstitutionally vague and overbroad,

but this argument fails. Deal acknowledges that we rejected a similar argument in

United States v. Panfil, 338 F.3d 1299, 1301 (11th Cir. 2003), where we held that

“the language of § 2422(b) is clear” and the phrase “sexual activity for which any

person can be charged with a criminal offense” could be interpreted readily based

on its “plain and ordinary meaning[].” Deal contends that the statute is vague

because it incorporates the laws of the 50 states, which vary with regard to what

qualifies as a prohibited “sexual activity,” but the statute is not unconstitutional

because it references different state laws, see United States v. Anwan, 966 F.2d

1415, 1424 (11th Cir. 1992). Deal’s indictment, which included the text of the

statute, charged him with attempting to entice “a person [he] believed had not

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attained the age of 18 years, to engage in sexual activity for which a person can be

charged . . . under the laws of the State of Florida, that is, the crime of lewd and

lascivious battery upon a person less than 16 years of age, in violation of Section

800.04(4)(a), Florida Statutes.” 18 U.S.C. § 2422(b). Deal lacks standing to argue

hypothetically that the statute would be unconstitutional as applied either to

conduct that would constitute a misdemeanor or would involve a 16 or 17 year

old. See United States v. Di Pietro, 615 F.3d 1369, 1371–72 (11th Cir. 2010).

The district court did not err by denying Deal’s motion to dismiss his indictment.

      Deal argues that the United States failed to prove that he believed that Alice

was 13 years old or that Deal took a “substantial step” to accomplish his crimes,

but his arguments are absurd. Deal was well aware of Alice’s age: Deal contacted

Alice after reviewing her online profiles at Yahoo! and VampireFreaks.com, both

of which contained pictures of a young girl and described Alice as being 13 years

old; Alice told Deal repeatedly that she was 13 and in eighth grade; Deal

responded positively to Alice’s question if “13 [was] ok”; and Deal remarked that

he “fe[lt] like [he]’d be robing [sic] the cradle . . . .” Although Deal testified that

he believed Alice was older because her online photograph was dated and she

frequented an adult restaurant, Dave and Buster’s, a jury reasonably could have

discredited Deal’s testimony, see United States v. Tampas, 493 F.3d 1291, 1298

                                            5
(11th Cir. 2007), based on Alice’s statements, Deal’s keen interest in Alice’s

physical immaturity, see United States v. Lanzon, 639 F.3d 1293, 1298–99 (11th

Cir. 2011), and his acknowledgment in the first online conversation that a

relationship with Alice could “get [him] in . . . trouble,” see United States v.

Farley, 607 F.3d 1294, 1334 (11th Cir. 2010). Deal’s testimony, which the jury

discredited, provides substantive evidence of his guilt. See United States v.

Brown, 53 F.3d 312, 314 (11th Cir. 2007). In addition to his sexually explicit

conversations, Deal took other substantial steps to entice Alice to agree to sexual

activities and to be photographed. Deal offered to buy Alice a bikini and thong

underwear, obtained her permission to be photographed, arranged to meet at a

location convenient for Alice, traveled to that location twice, and had in his

possession a camera, thong underwear, and condoms. See Lanzon, 639 F.3d at

1299. The United States presented ample evidence to support Deal’s convictions.

      Deal challenges the denial of three of his motions to suppress, but his

arguments fail. First, Deal argues that the evidence seized from his vehicle should

have been suppressed because officers lacked probable cause to search his vehicle

without a warrant, but the officers had probable cause to believe that Deal had

contraband in his vehicle: that is, the camera, thong underwear, and condoms Deal

had mentioned in his online conversations with Alice. See id. at 1300. Second,

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Deal argues that the oral and written statements he made to law enforcement were

involuntary because he felt ill and because Jones “tricke[d]” Deal into believing

that he could avoid prosecution, but Deal waived his right to remain silent both

orally and in writing and the events that followed did not affect the voluntariness

of that waiver. When Deal complained of feeling lightheaded and queasy,

interrogators granted his request for a trash can and provided him water. Jones’s

remark to Deal that “we might be able to straighten some of this out” was

responsive to Deal’s assertions that his contact with Alice was innocent and did

not promise exoneration in exchange for Deal’s cooperation, see United States v.

Mercer, 541 F.3d 1070, 1075–76 (11th Cir. 2008), and Jones’s statement in which

he offered Deal an “opportunity” to write a letter to the prosecutor was “not a

sufficient inducement so as to render [the contents of the letter] involuntary,”

United States v. Davidson, 768 F.2d 1266, 1271 (11th Cir. 1985). Third, Deal

argues that the letter he wrote to a prosecutor was inadmissible as part of a plea

negotiation, see Fed. R. Evid. 410; Fed. R. Crim. P. 11(f), but Deal’s statements of

contrition, coupled with the denial of guilt, were plainly not made “with a view

toward negotiating a plea agreement.” United States v. Robertson, 582 F.2d 1356,

1368 (5th Cir. 1978).




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      Deal argues that the district court plainly erred by admitting “suppressed

evidence” about Deal’s Yahoo! internet account, but when the United States

offered into evidence the records of the online account, defense counsel stated he

had “[n]o objection.” Moreover, Deal admitted that he had engaged in the

conversations for that account. The district court did not plainly err.

      Deal also complains about two other trial errors, neither of which warrants

relief. First, Deal argues, for the first time on appeal, that Jones testified falsely

that Deal contacted him in a romance chatroom and the introduction of that false

testimony violated Deal’s right to due process, Giglio v. United States, 405 U.S.

150, 92 S. Ct. 763 (1972), but Jones acknowledged during cross-examination that

he had been mistaken and, in the light of overwhelming evidence of Deal’s guilt, it

is unlikely that Jones’s earlier misstatement affected the jury’s judgment, see

United States v. Alzate, 47 F.3d 1103, 1110 (11th Cir. 1995). Second, Deal argues

that the district court should have instructed the jury about the mandatory

minimum sentences that Deal faced, but he acknowledges the controlling authority

that “‘the punishment provided by law for offenses charged is a matter exclusively

for the court and should not be considered by the jury in arriving at a verdict as to

guilt or innocence,’” United States v. Thigpen, 4 F.3d 1573, 1577 (11th Cir. 1993)

(quoting United States v. McCracken, 488 F.2d 406, 423 (5th Cir. 1974)). We are

                                            8
bound by that precedent unless it is overruled by the Supreme Court or this Court

sitting en banc. Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1274 (11th Cir.

2010).

      We AFFIRM Deal’s convictions.




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