                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________                  FILED
                                                                 U.S. COURT OF APPEALS
                                       No. 10-10865                ELEVENTH CIRCUIT
                                   Non-Argument Calendar           NOVEMBER 10, 2010
                                 ________________________               JOHN LEY
                                                                         CLERK
                            D.C. Docket No. 1:09-cr-20648-PAS-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                                    Plaintiff-Appellee,

                                              versus

CARLOS MAURICIO ABARCA,

lllllllllllllllllllll                                             Defendant-Appellant.

                                ________________________

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

                                     (November 10, 2010)



Before BLACK, HULL and MARTIN, Circuit Judges.

PER CURIAM:
       Carlos Abarca appeals his convictions for one count of attempting to

persuade, entice, or coerce a minor to engage in unlawful sexual activity, in

violation of 18 U.S.C. § 2422(b), and two counts of attempting to transfer obscene

material to a minor, in violation of 18 U.S.C. § 1470. Abarca raises two issues on

appeal, which we address in turn.

                                                I.

       Abarca first asserts the district court erred by refusing to allow him to

present testimony by an FBI case agent regarding the search of his computer.

Specifically, Abarca contends he should have been allowed to present the

testimony—which the district court concluded was inadmissible hearsay—because

it was relevant to his defense.1

       Pursuant to the Fifth and Sixth Amendments, a defendant has the right to

call witnesses in his defense, and must generally be permitted to introduce

evidence pertaining to any elements of the charged offense or an affirmative

defense. United States v. Hurn, 368 F.3d 1359, 1362-63 (11th Cir. 2004).

However, the accused does not have an unfettered right to offer testimony that is




       1
        We review a district court’s evidentiary ruling for abuse of discretion. United States v.
Baker, 432 F.3d 1189, 1202 (11th Cir. 2005).

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incompetent, privileged, or otherwise inadmissible under standard rules of

evidence. Taylor v. Illinois, 484 U.S. 400, 410 (1988).

      We conclude the district court did not abuse its discretion in refusing to

allow Abarca to present the case agent’s testimony regarding the results of the

government’s search of Abarca’s computer. The case agent did not personally

search the computer; thus, the agent’s testimony would have been inadmissible

hearsay. See Taylor, 484 U.S. at 410. Furthermore, the exclusion of the testimony

did not violate Abarca’s constitutional right to a fair trial because the case agent’s

testimony would not have incriminated Abarca, and the exclusion of the case

agent’s testimony did not prevent Abarca from making his defense. See United

States v. Thomas, 62 F.3d 1332, 1338 (11th Cir. 1995) (holding that the

defendant’s right to a fair trial was not violated by the exclusion of hearsay

statements and noting that the case was distinguishable from Chambers2 and its

progeny because the witnesses’ statements did not tend to incriminate them, and

that the exclusion of the testimony did not prevent the defendants from making

their defense).




      2
          Chambers v. Mississippi, 410 U.S. 284, 302-03 (1973).

                                                3
                                               II.

       Abarca next asserts the district court erred in its instructions to the jury on

two separate grounds. First, Abarca claims the district court’s jury instruction

regarding what constituted a substantial step with respect to the § 2422(b) count

was erroneous and misled the jury. Specifically, he contends the district court’s

instruction improperly led the jury to believe that a substantial step could be

committed solely through communications. Second, Abarca argues the district

court’s entrapment jury instruction was erroneous and misled the jury because the

court refused to include the language, “existence of prior related offenses is

relevant, but not dispositive.”3

A. Substantial Step Jury Instruction

       In United States v. Yost, we addressed whether the defendant’s conduct

constituted a substantial step towards violating § 2422(b). 479 F.3d 815, 819-20

(11th Cir. 2007). The defendant in Yost made sexually explicit comments to an

undercover agent posing as a child, posted a picture of his genitalia, called her on

the telephone, and made arrangements to meet her so they could engage in sexual



       3
         We review a district court’s rejection of a requested jury instruction for abuse of
discretion. United States v. Moore, 525 F.3d 1033, 1046 (11th Cir. 2008). However, we review
the legal correctness of a jury instruction de novo. United States v. Prather, 205 F.3d 1265, 1270
(11th Cir. 2000).

                                                4
activity. Id. at 820. We found that the totality of these acts constituted a

substantial step in an attempt to knowingly persuade, induce, entice, or coerce a

minor to engage in criminal sexual activity. Furthermore, we specifically rejected

the defendant’s argument that his failure to arrive at the meeting place precluded a

finding of a substantial step, holding that neither travel nor an actual meeting is

necessary to find that a defendant committed a substantial step in these

circumstances. Id.

       We conclude the district court’s instruction is consistent with our precedent

in Yost. The district court noted that the jury may consider the nature and the

context of Abarca’s internet, e-mail, and telephone conversations with the

undercover agent and whether he made arrangements for any meeting. Further,

the court noted that an actual meeting was not necessary for a defendant’s conduct

to constitute a substantial step. Thus, the district court did not err in its substantial

step instruction to the jury.

B. Entrapment Jury Instruction

      An affirmative defense of entrapment requires the defendant to prove two

elements: (1) government inducement of the crime; and (2) lack of predisposition

on the part of the defendant to commit the crime. United States v. Padron, 527

F.3d 1156, 1160 (11th Cir. 2008). We have noted the existence of prior offenses

                                            5
is relevant, but not dispositive, in determining predisposition. United States v.

Brown, 43 F.3d 618, 625 (11th cir. 1995).

      We conclude the district court did not abuse its discretion by refusing to

give Abarca’s requested addition to the entrapment instruction. The requested

addition lacked an evidentiary basis due to the fact that no evidence had been

adduced relating to the issue of prior crimes. Further, the requested addition was

addressed in the charges actually given to the jury, and the court’s failure to give

the specific instruction requested by Abarca did not impair his ability to present an

effective defense. See United States v. Moore, 525 F.3d 1033, 1046 (11th Cir.

2008); United States v. Garcia, 405 F.3d 1260, 1274 (11th Cir. 2005).

Accordingly, we affirm Abarca’s convictions.

      AFFIRMED.




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