                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                MAR 28 2005
                                    TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                     Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                           No. 03-8071
                                                        (D.C. No. 02-CR-150-D)
 BENJAMIN FRANKLIN BROWN,                                     (Wyoming)

           Defendant-Appellant.


                                 ORDER AND JUDGMENT*


Before MURPHY, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
TYMKOVICH, Circuit Judge.


       By superseding indictment filed on March 19, 2003, in the United States District

Court for the District of Wyoming, Benjamin Franklin Brown (defendant) was charged in

one count with the Use, on August 28, 2002, of Interstate Commerce to Entice a Minor

for Illegal Sexual Activity, in violation of 18 U.S.C. §2422(b). Specifically, the

defendant was charged as follows:

                On or about August 28, 2002, in the District of Wyoming, the
                Defendant, BENJAMIN FRANKLIN BROWN, using a
                means of interstate commerce, namely the Internet, did


       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
             knowingly attempt to persuade, induce, and entice an
             individual who has not attained the age of 18 years to engage
             in sexual activity for which an individual could be charged
             with a criminal offence, to wit: the Defendant, Benjamin
             Franklin Brown, arranged to meet an individual he knew from
             the internet as “cheybrittney,” a 13 year old female, for the
             purpose of engaging in oral sex, which constitutes a violation
             of Wyoming law, specifically W.S. §6-2-304(a)(i), commonly
             known as Sexual Assault in the Third Degree.
                 In violation of 18 U.S.C. §2422(b).

      The defendant pled not guilty to the foregoing charge. A jury trial began on May

19, 2003, and on May 21, 2003, the jury returned a verdict of guilty as charged. On

August 7, 2003, the defendant was sentenced to 46 months imprisonment, a $500 fine,

three years of supervised release and a $100 special assessment. Defendant appeals.

      On appeal, present counsel (who was not trial counsel) raises two issues, which he

frames as follows:

             1. Whether the district court committed prejudicial error by
             allowing evidence of irrelevant instances of prior bad acts to
              be admitted at trial?

             2. Whether the district court erred by refusing to grant
             Brown’s motion for judgment of acquittal when the United
             States failed to prove the “interstate commerce” element of
             the offense, thereby depriving the federal district court of
             jurisdiction?

      The charge in the instant case resulted from an undercover online investigation

conducted by Flint Waters, a Special Agent for the Wyoming Division of Criminal

Investigation (“DCI”). At trial, Agent Waters was the government’s only witness. On

August 28, 2002, Waters, in Cheyenne, Wyoming, was “online” in a YAHOO! chat room

                                           -2-
titled “Wyoming Chat Room,” having assumed the persona of a 13 year-old Cheyenne,

Wyoming, girl with the YAHOO! nickname “cheybrittney.” While in the chat room,

Waters was contacted by a YAHOO! user with the screen name “brown6230,” who

“asked” “cheybrittney” if she wanted to engage in a “private chat.” Agent Waters

recognized the screen name “brown6230” because he had a “private chat of a sexual

nature” with a person using the same screen name on June 14, 2002. Thereafter, in the

“conversation” occurring on August 28, 2002, between Waters and a person who

eventually turned out to be the defendant, the two conversed about arranging a sexual

encounter between the defendant and the 13 year-old persona whom Waters pretended to

be. The details of their conversation need not be recounted, since, on appeal, except for

his claim that the evidence does not show a “use” of interstate commerce, the defendant

does not claim, as such, that there is an insufficiency of the evidence to support the jury’s

verdict. (Jumping ahead, defendant testified at his trial and stated that he didn’t mean

what he said in his “conversation” on August 28, 2002, with Agent Waters and that he

was only “fantasizing”).

       The “conversation” occurring on August 28, 2002, between Waters and the

defendant ended when the defendant agreed to meet “cheybrittney” in a parking lot in

Cheyenne at about 3:35 p.m. The defendant drove his vehicle into the parking lot at the

appointed time and remained in his car until Waters, who arrived shortly thereafter,

approached the defendant, still in his car. Waters arrested the defendant and advised him


                                             -3-
of his Miranda rights. The defendant first told Waters that he was in the lot to meet a

deputy sheriff who was a friend. The defendant denied using his computer earlier that

day, and said that someone must have broken into his house and used his computer.

Defendant then agreed to go with Waters to the DCI offices for further questioning.

       Prior to trial, the defendant moved to suppress the use at trial of the transcript of

his online conversation with Agent Waters occurring on June 14, 2002. The district

court, after hearing, granted the motion, in part, but otherwise denied it. In so doing, the

district court redacted from the transcript of the conversation on June 14, 2002, a

reference by the defendant to his possession of “pornography” and that on a prior

occasion he had sexual activity with a 13 year-old female. The motion, as indicated, was

denied as to the balance of the June 14, 2002, online “conversation” as reflected in the

transcript thereof. In so doing, the district court relied on Fed. Rules of Evidence 404,

stating, inter alia, that, though the challenged evidence was no doubt “prejudicial” to the

defendant, it was, at the same time, immensely probative of motive, opportunity, intent,

preparation, plans, knowledge, identity, or absence of mistake or accident, as are

mentioned in 404(b). On appeal, the first issue raised by counsel is that the district court

erred in refusing to suppress the entire transcript of the online “conversation” occurring

on June 14, 2002, between the defendant and Agent Waters.

       A district court’s decision to admit evidence of prior “bad acts” of a defendant is

reviewed for an abuse of discretion. United States v. Viefhaus, 168 F.3d 392, 397 (10th


                                             -4-
Cir. 1999). In this regard, in United States v. Roberts, 185 F.3d 1125, 1141 (10th Cir.

1999), we held that, in order for a district court to admit at trial evidence of “other bad

acts” under Fed. Rules of Evidence 404(b), four requirements must be met:

              (1) the evidence must be offered for a proper purpose; (2) the
              evidence must be relevant; (3) the trial court must make a
              Rule 403 determination of whether the probative value of the
              similar acts is substantially outweighed by its potential for
              unfair prejudice; and (4) pursuant to Fed. R. Evid. 105, the
              trial court shall, upon request, instruct the jury that evidence
              of similar acts is to be considered only for the proper purpose
              for which it was admitted.

       Our study of the matter leads us to conclude that the district court did not abuse its

discretion in admitting into evidence the transcript of the “online” conversation between

the defendant and Agent Waters, occurring on June 14, 2002, after redacting a small part

thereof. We agree that under 404(b) the evidence was probative, and, arguably, extremely

so, of defendant’s motive, intent, knowledge, absence of mistake or accident. We agree

with the district court that the transcript of the “conversation” occurring on June 14, 2002,

was no doubt very prejudicial to the defendant, but, at the same time, was highly

probative of the elements of the crime charged. Also, the two online “conversations”

were close in time, i.e., two months apart. All of this is especially true in light of

defendant’s testimony at trial, i.e., that in both of his “conversations” with Agent Waters

he didn’t mean what he said, and was only fantasizing. In this connection, we would also

note that trial counsel did not ask for a cautionary instruction on this matter.

       Defendant also argues in his brief that the district court erred in denying his

                                             -5-
motions for judgment of acquittal made at the close of the government’s case and

renewed after the defendant’s testimony and that of his wife. (There were only three

witnesses in the case: Agent Waters, defendant and defendant’s wife).

       In those motions for judgment of acquittal, defendant argued that “because both

the defendant and Agent Waters were located in Cheyenne, Wyoming,” the prosecution

had failed to show the “interstate commerce element of the crime charged.” In this regard

the defendant, in the privacy of his own home, located on the grounds of Fort Warren Air

Force Base in Cheyenne, Wyoming, used his computer and went “online,” inquiring about

possible sexually activity with a 13 year-old female. That message was routed through

California and was used by Agent Waters on August 28, 2002, in responding to

defendant’s inquiry. In United States v. Kammersell, 196 F.3d 1137 (10th Cir. 1999), the

defendant was charged with sending a threatening communication in interstate commerce

in violation of 18 U.S.C. §875(c). In that case, both the sender and the recipient of the

threat lived in Utah. However, the message (a bomb threat) was automatically

transmitted through interstate telephone lines from the sender’s computer in Utah to the

America On Line server in Virginia and than back to Utah. We held in that case that the

“interstate commerce” requirement of the statute there involved had been met. That

would seem to cover our situation, where the message sent by the defendant in Wyoming

was routed through California and Agent Waters received the message in Wyoming from

California. In this connection, see also United States v. Munro, 394 F.3d 865, 870 (10th


                                            -6-
Cir. 2005), where we said:

              In short, the government presented sufficient evidence at trial
              from which a reasonable juror could have found Munro guilty
              of attempting to persuade a minor to engage in sexual acts
              through use of a computer connected to the Internet.

       As stated, the district court granted defendant’s motion to suppress a small part of

defendant’s online “conversation” with Agent Waters occurring on June 14, 2002. When

Agent Waters read to the jury the transcript of his online conversation with the defendant

on June 14, 2002, the redacted material was not read to the jury. However, later in his

testimony, when Agent Waters was testifying about his interrogation of the defendant at

DCI headquarters on August 28, 2002, somehow, we are not quite sure just how, the

redacted part of their June 14, 2002, conversation was inadvertently heard by the jury.

(All agree it was inadvertent and not intentional). The mistake was apparently

immediately noticed by all concerned. In any event, the district court immediately

instructed the jurors, in fact, twice, that they should disregard that part of the transcript

which mentioned the statements made by the defendant in the June 14, 2002, conversation

with Agent Waters, which had been redacted. Thereafter, trial counsel, out of the

presence of the jury, immediately moved for a mistrial. After hearing, the district court

denied the defendant’s motion for a mistrial. The jury was fully instructed to disregard

and not take into consideration the matters contained in the redacted portion of the June




                                              -7-
14 conversation. Presumably, the jury followed the court’s instruction.1 Bruton v. United

States, 391 U.S. 123, 135 (1968), United States v. Rahseparian, 231 F. 3d 1267, 1277

(10th Cir. 2000).

       Judgment affirmed.

                                          ENTERED FOR THE COURT

                                          Robert H. McWilliams
                                          Senior Circuit Judge




       1
        We note that in his opening brief, counsel for the defendant did not list the
“mistrial” matter as a ground for reversal. However, counsel for the government did
discuss this matter, at some length, in his answer brief, and counsel for the defendant then
discussed the matter in his reply brief. At oral argument, the mistrial issue was the only
matter argued by counsel.

                                            -8-
