                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________                  FILED
                                                          U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                No. 09-16015
                                                               OCTOBER 7, 2010
                            Non-Argument Calendar
                                                                 JOHN LEY
                          ________________________                CLERK

                    D.C. Docket No. 08-00316-CR-J-32TEM

UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

                                     versus

ROBERT WILLIAM GODWIN,
a.k.a. Wildstang982004,

                                                        Defendant-Appellant.
                          ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                        ________________________
                              (October 7, 2010)

Before BLACK, PRYOR and COX, Circuit Judges.

PER CURIAM:

      Robert William Godwin appeals his conviction for attempting to persuade,

induce, entice, or coerce a minor to engage in sexual activity, in violation of 18

U.S.C. § 2422(b). On appeal, Godwin presents four issues: (1) whether the district
court erred in denying his motion for judgment of acquittal under Federal Rule of

Criminal Procedure 29 and his motion for a new trial because there was insufficient

evidence to support his conviction; (2) whether the district court abused its discretion

in excluding certain expert testimony from a forensic psychologist; (3) whether the

district court erred in denying a motion to suppress his post-arrest statements; and (4)

whether the district court abused its discretion in admitting at trial the videotape and

transcript of his post-arrest interview. After careful review, we affirm.

      In the summer of 2008, Godwin entered a Yahoo! chat room using the screen

name “wildstang 982004” and engaged in sexually explicit conversations on five

separate occasions with “Cary Anne Leeds” – an individual that Godwin believed to

be a fourteen-year-old girl. Unbeknownst to Godwin, Cary was actually an adult

undercover investigator with the Child Predator Cyber Crime Unit of the Florida

Attorney General’s Office. In their online conversations, Godwin extensively

questioned Cary on a variety of sexually explicit topics. For example, Godwin asked

Cary whether she was a virgin, whether she would let an older guy touch her on the

“ass” or “breast,” whether she would let Godwin see her naked, how she would feel

about sex if they started dating, and how she would feel about performing various

sexual activities with Godwin and others. During multiple conversations, Godwin

expressed concern over law enforcement involvement. Despite these concerns,

                                           2
Godwin eventually arranged to meet Cary at a Burger King restaurant around

lunchtime. When Godwin arrived and parked his Ford Mustang near the Burger

King, he was arrested.

      After his arrest, officers interviewed Godwin at the police station, and this

interview was videotaped. The officers advised Godwin of his Miranda rights, and

Godwin read, initialed, and signed a form waiving these rights. The officers did not

tell Godwin that he had been chatting online with an undercover officer, but instead

deceptively told him that a frantic mother had called after discovering that her

daughter was gone. During this interview, Godwin confirmed the contents of the

chats with Cary, admitted that no one else would have used his computer to engage

in the chats, admitted that he had known that she was only fourteen years old, spoke

about his reasons for deciding to meet Cary, and admitted that he had engaged in

similar online sex talk with other minor girls. Several times during the interview,

Godwin stated that he was not a pedophile but that he was being made to feel like

one. The investigators assured him that no one was calling him a pedophile.

      At trial, the district court admitted the videotape and transcript of the interview

into evidence. The district court also permitted Godwin’s expert witness, Dr. Alan

J. Harris, a forensic psychologist, to testify about certain subjects, but not others.

Considering that Godwin had asserted an entrapment defense, the district court

                                           3
permitted Dr. Harris to testify about whether Godwin was particularly susceptible to

inducement while chatting on the internet. The district court further ruled, however,

that Godwin could not elicit Dr. Harris’s opinion that Godwin was neither a pedophile

nor a predator.

      Godwin was convicted and ultimately sentenced to 121 months’ imprisonment.

This appeal followed.

A. Sufficiency of the Evidence

      Godwin argues that the evidence at trial was insufficient to sustain his

conviction under 18 U.S.C. § 2422(b) because the Government did not prove the

existence of a real child victim. According to Godwin, proof of a real child victim

is necessary because the underlying Florida crime cited in the indictment–lewd or

lascivious battery (Fla Stat. § 800.04(4)(a)-(b))–requires a real child victim.

      We review de novo issues of statutory interpretation and sufficiency of the

evidence. United States v. Sabretech, Inc., 271 F.3d 1018, 1022 (11th Cir. 2001).

      The federal statute under which Godwin was charged, 18 U.S.C. § 2422(b),

makes it illegal for an individual to attempt to knowingly persuade, induce, entice, or

coerce any individual under the age of eighteen to engage in illicit sexual activity.1


      1
          The full statutory text reads:
               (b) Whoever, using the mail or any facility or means of interstate or
               foreign commerce, or within the special maritime and territorial

                                                 4
“The underlying criminal conduct that Congress expressly proscribed in passing §

2422(b) is the persuasion, inducement, enticement, or coercion of the minor rather

than the sex act itself.” United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir.

2004). Thus, if a defendant attempts to persuade a minor to engage in illicit sexual

activity, but does not actually engage in a sex act, § 2422(b) has still been violated.

Moreover, we have clearly held that an actual minor victim is not required for an

attempt conviction under § 2422(b); rather, the defendant’s belief that a minor was

involved is sufficient to sustain the conviction. See United States v. Root, 296 F.3d

1222, 1227 (11th Cir. 2002); accord United States v. Brenton-Farley, 607 F.3d 1294,

1325 (11th Cir. 2010); United States v. Lee, 603 F.3d 904, 913 (11th Cir. 2010);

United States v. Yost, 479 F.3d 815, 819 & n.2 (11th Cir. 2007); United States v.

Hornaday, 392 F.3d 1306, 1309-11 (11th Cir. 2004); Murrell, 368 F.3d at 1286-88.

       Godwin recognizes this precedent but nonetheless contends that a real child

victim is required to sustain his conviction under § 2422(b). He argues that all of the

cases in this circuit holding that an actual minor victim is not required for an attempt



              jurisdiction of the United States knowingly persuades, induces,
              entices, or coerces any individual who has not attained the age of 18
              years, to engage in prostitution or any sexual activity for which any
              person can be charged with a criminal offense, or attempts to do so,
              shall be fined under this title and imprisoned not less than 10 years or
              for life.
18 U.S.C. § 2422(b).

                                                  5
conviction under § 2422(b) are distinguishable because they involved clear violations

of the underlying predicate offense and did not address the Florida lewd or lascivious

battery statute (Fla. Stat. § 800.04(a)-(b)) at issue in this case. Godwin contends that

this statute requires an actual battery on a real child victim. Godwin then reasons that

the evidence supporting his federal conviction under § 2422(b), which incorporates

this Florida statute by reference, is insufficient because no real child victim was

involved.

       We reject Godwin’s argument for two reasons. First, § 2422(b) does not

require the defendant to violate the underlying state statute to be convicted. See

United States v. Mannava, 565 F.3d 412, 417 (7th Cir. 2009) (noting that defendant

does not have to violate underlying state statute in order to be convicted under §

2422(b)). Rather, § 2422(b) itself criminalizes the attempt to knowingly persuade,

induce, entice, or coerce a minor to engage in sexual activity for which a person can

be charged with a criminal offense. So even if Godwin were correct that Fla. Stat. §

800.04(a)-(b) only criminalizes the completed sexual act (an actual battery on a real

child victim), § 2422(b) would still impose liability because that section itself

explicitly criminalizes the attempt to persuade a minor to engage in criminal sexual

activity.




                                           6
      Second, the offense of lewd and lascivious battery under Florida law, contrary

to Godwin’s contention, can be committed by attempt and does not require a real

child victim. See Hudson v. State, 745 So. 2d 997, 1000-01 (Fla. 2d DCA 1999)

(holding that defendant may be convicted of Florida crime of attempted lewd or

lascivious act in case involving undercover detective posing as fourteen-year-old

boy); Bist v. State, 35 So. 3d 936, 941-42 (Fla. 5th DCA 2010) (affirming Florida

conviction for attempted lewd or lascivious battery in case involving thirteen-year-old

decoy). Therefore, Godwin’s no-actual-child challenge to his § 2422(b) conviction

for attempted enticement fails.

B. Expert Testimony

      Godwin argues that the district court erred in prohibiting his expert witness, Dr.

Alan J. Harris, from testifying about particular subjects at trial. Dr. Harris was

prohibited from testifying (1) that Godwin was not a pedophile or a sexual predator,

and (2) that Godwin was diagnosed with an impulse control disorder. Godwin claims

that the exclusion of this testimony deprived him of the right to present evidence on

the second element of his entrapment defense, namely, that he was not predisposed

to commit the crime prior to the Government’s inducement.




                                           7
      We review for abuse of discretion a district court’s ruling on the admissibility

of expert testimony. United States v. Frazier, 387 F.3d 1244, 1258 (11th Cir. 2004)

(en banc).

      The district court did not abuse its discretion in preventing Dr. Harris from

testifying that Godwin was not a pedophile or a sexual predator. The issue of whether

Godwin was a pedophile or a predator was not relevant to the elements of § 2422(b),

to the entrapment defense, or to rebut an argument of the Government. Testimony on

the subject of pedophilia and child predators, moreover, would have confused or

misled the jury as to whether Godwin was on trial for being a pedophile or predator

rather than for the crime with which he was actually charged.

      Nor did the district court abuse its discretion in preventing Dr. Harris from

testifying about Godwin’s impulse control disorder. The district court provided

Godwin an opportunity to present his entrapment defense and to explain how his

personality disorders relate to his susceptibility to inducement. Dr. Harris was

permitted to testify that Godwin had a sexual compulsion disorder that compelled him

to engage in sexual activity. Dr. Harris further testified that Godwin had an

affirmation addiction that made it difficult for Godwin to say “no.” And, Dr. Harris

testified that Godwin’s conditions made him more susceptible to commit a sexual

crime than one who does not have his disorder. The district court allowed Godwin

                                          8
to elicit testimony to support his entrapment defense, and did not abuse its discretion

in excluding some portions of Dr. Harris’s testimony.

C. Motion to Suppress

       Godwin argues that the district court erred in denying his motion to suppress

the videotape and transcript of his post-arrest custodial interview. The motion to

suppress asserted violations of the Fifth Amendment. (R.1-21.) Godwin contends

that the waiver of his Miranda rights had been unknowing, involuntary, and

unintelligent because the investigators deceived him into thinking that Cary was a

real fourteen-year-old girl with a concerned mother. In response, the United States

contends that Godwin waived his right to appellate review of his suppression

arguments by failing to object to the magistrate judge’s report and recommendation.

       We conclude that Godwin waived his right to appellate review of his motion

to suppress. Pursuant to Federal Rule of Criminal Procedure 59(b)(2), a defendant’s

failure to file specific written objections to a magistrate judge’s recommendation

within ten days after being served with the recommendation, or by some other date

set by the court, constitutes a waiver of the right to appellate review.2 Godwin did not



       2
          Rule 59 has been amended to change the time in which a party must file an objection to
the magistrate judge’s proposed findings and recommendations. The time period is now fourteen
days rather than ten days. This amendment, however, was not effective when the magistrate judge
issued the report and recommendation in this case.

                                               9
file objections to the magistrate judge’s report and recommendation, and the district

judge adopted it. (R.1-49.) We conclude that appellate review of denial of the

motion to suppress was waived.3

D. Admission of Videotape at Trial

       Godwin argues that the district court abused its discretion in admitting the

videotape of his post-arrest interview into evidence at trial. He contends that

admission of the videotape was cumulative, irrelevant, and prejudicial with minimal

probative value, in violation of Federal Rule of Evidence 402 and 403. Godwin also

contends that certain statements in the videotape contained inadmissible references

to other minor children with whom Godwin engaged in online sex talk, in violation

of Federal Rule of Evidence 404(b).

       The district court did not abuse its discretion in admitting the videotape of

Godwin’s post-arrest interview at trial. The videotape was highly relevant in showing

Godwin’s intent to commit the crime, as Godwin confirmed the contents of the chats,

admitted that no one else would have used his computer to engage in the chats,

admitted that he knew Cary was fourteen years old, and spoke about his plan to meet


       3
           That Godwin “renewed” his motion to suppress when the United States sought to admit
the videotape at trial, which the district court denied, does not affect Godwin’s waiver. Because no
new facts served as the basis for the renewed motion, the district judge’s original order was law of
the case, and Godwin could not relitigate the suppression issue at trial. See United States v. Montos,
421 F.2d 215, 220 (5th Cir. 1970).

                                                 10
Cary and his reasons for meeting Cary. The relevance of the tape, moreover, was not

substantially outweighed by the danger of unfair prejudice under Federal Rule of

Evidence 403. Although Godwin claims that references to him as a “pedophile” were

prejudicial, Godwin was the one who made these references in an effort to deny that

he was a pedophile. The district court did not abuse its discretion in concluding that

the probative value of the tape was not substantially outweighed by the danger of

unfair prejudice.

       Nor did the district court abuse its discretion in admitting the portion of the

videotape in which Godwin admitted that he had engaged in similar online sex talk

with other minor girls. This evidence was admissible under Federal Rule of Evidence

404(b) to prove Godwin’s intent to induce Cary to engage in illegal sexual activity

and to undermine Godwin’s entrapment defense. See United States v. Ramirez, 426

F.3d 1344, 1354 (11th Cir. 2005) (a similarity between the prior act and the charged

offense will make the other bad act highly probative about a defendant’s intent in the

charged offense). The probative value of the evidence outweighed any prejudice

created by its admission.4


       4
          Godwin also argues that the district court violated Federal Rule of Evidence 404(b) because
the videotape contained references to state charges that could have been brought against him.
Godwin’s objection to these references came after the jury watched the videotape, and the district
court ordered stricken from the transcript references to the state charges. Godwin’s objection came
too late. And, admission of this evidence was, in light of all the other evidence, harmless.

                                                 11
AFFIRMED.




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