                                                           [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________            FILED
                                                  U.S. COURT OF APPEALS
                               No. 09-12530         ELEVENTH CIRCUIT
                                                        APRIL 14, 2010
                           Non-Argument Calendar
                                                         JOHN LEY
                         ________________________
                                                           CLERK

                D. C. Docket No. 08-00225-CR-ORL-35KRS

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

JOSE O. RIVERA,

                                                           Defendant-Appellant.


                         ________________________

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

                                (April 14, 2010)

Before BLACK, PRYOR and FAY, Circuit Judges.

PER CURIAM:
      Jose O. Rivera appeals from his conviction for attempt to persuade, induce,

or entice a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b).

On appeal, Rivera argues that the district court erred in denying his motion to

suppress post-Miranda1 statements that he made to a police officer. Specifically,

Rivera argues that any waiver of his Miranda rights was involuntary because,

immediately before he signed a form acknowledging that he understood his rights

under Miranda, a police officer caused him distress by falsely informing him that a

minor girl, with whom Rivera had planned to meet, was missing. In support of this

argument, Rivera points to media reports that minor girls who lived in Florida were

reported missing in 2008 and 2009, and contends that these media reports

heightened his distress upon hearing the officer’s false statement.

      Rivera also argues that the district court erred in denying his motion for a

judgment of acquittal under Fed.R.Crim.P. 29, because the evidence did not show

that he specifically intended to induce a minor girl into engaging in sexual activity.

In support of this argument, he asserts that the photographs that accompanied the

online profile of the purported minor that he was communicating with depicted a

girl who was older than 14 years old. In addition, he asserts that, when he spoke

with this purported minor on the telephone, she sounded like an adult woman.



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          Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

                                               2
Rivera further argues that he did not take a substantial step toward committing this

offense because he merely drove by the location where he had arranged to meet

with the purported minor, and did not slow down or stop at this location.

      For the reasons set forth below, we affirm.

                                          I.

      A federal grand jury indicted Rivera, charging him with attempt to persuade,

induce, or entice a minor into engaging in sexual activity, in violation of 18 U.S.C.

§ 2422(b). Rivera subsequently filed a motion to suppress statements that he made

to a police officer. In his motion, Rivera explained that, on June 5, 2007, police

officers stopped him because they believed that he had attempted to meet with a

minor girl for the purpose of engaging in sexual activity. Rivera claimed that an

officer placed him into custody, and then interrogated him for nearly 20 minutes

without informing him of his Miranda rights. Rivera argued that, because the

officer subjected him to custodial interrogation without informing him of his

Miranda rights, the statements that he made during this interview should be

suppressed. He did not argue that his statements to the officer were involuntary.

      The district court held a hearing regarding Rivera’s motion to suppress. At

the hearing, Michael Spadafora, an agent employed by the Brevard County

Sheriff’s Office, testified that he had been conducting surveillance on June 5 when



                                          3
he observed Rivera drive by the location where he had arranged to meet with a

purported minor girl. Spadafora, who was in an undercover vehicle, followed

Rivera and instructed another police officer to stop Rivera. After Rivera was

stopped, Spadafora approached him and informed him that he was not free to

leave. Spadafora told Rivera that he knew that he was there to meet Kaylee, the

purported minor girl with whom he had arranged a meeting. He next informed

Rivera of his rights under Miranda.

          During his testimony, Spadafora identified a form as the Brevard County

“Miranda Rights Advisement” form. Spadafora had read Rivera his Miranda

rights from this form, and Rivera had placed a check mark on the form to

acknowledge that he understood his rights. Rivera had also signed and dated the

form. After Rivera signed the form, Spadafora escorted him to the passenger’s

side of a police car and, once Rivera was seated, closed the door. He subsequently

conducted a taped interview with Rivera while they were inside of the police car.

Spadafora averred that, during the interview, he did not threaten Rivera, promise

him anything in exchange for his waiver of his Miranda rights, coerce him, or use

physical force against him. Based on his observation, Spadafora believed that

Rivera had understood his rights and had voluntarily and intelligently waived those

rights.



                                            4
      On cross-examination, Spadafora clarified that, immediately after Rivera

was stopped, he told Rivera that Kaylee was missing, that he knew that Rivera was

there to meet Kaylee, and that he needed to talk to Rivera about the fact that she

was missing. In his testimony, Spadafora admitted that Kaylee was fictional, and

that he had thus lied to Rivera when he told him that Kaylee was missing. He

explained that he had told Rivera that Kaylee was missing as an interview tactic.

Spadafora confirmed that he told Rivera that Kaylee was missing immediately

before he informed Rivera of his Miranda rights. Based on his observation of

Rivera while they reviewed the Miranda rights on the form, Spadafora believed

that Rivera may have been nervous, but was not “very upset.”

      Rivera testified that no one read him Miranda warnings before he got into

the police car and began his interview with Spadafora. He further testified that he

felt “confused and worried” when Spadafora informed him that Kaylee was

missing, and that, due to this false information, he “wasn’t all there” during his

interview with Spadafora.

      After the conclusion of the evidence, Rivera argued that the evidence did not

clearly show that he had waived his Miranda rights, but he did not argue that any

waiver of his Miranda rights was involuntary. The court denied Rivera’s motion,

finding that his testimony was not credible. The court found that the documentary



                                           5
evidence, as well as an audio recording of Rivera’s interview with Spadafora,

demonstrated that he had knowingly waived his Miranda rights. In addition, the

court noted that, while Rivera had testified that he had felt worried and confused

during his encounter with Spadafora, he had the presence of mind to recall the

nature and timing of the statements that he had made to Spadafora. Accordingly,

the court concluded that Rivera had voluntarily, knowingly, and intelligently

waived his Miranda rights before making statements to Spadafora.

      At trial, Spadafora testified that on June 1, 2007, he engaged in an internet

chat session with an individual who identified himself as “Jletsplay27.”

“Jletsplay27” was later identified during the trial as Rivera. Throughout the chat,

Spadafora posed as a 14-year-old female named Kaylee, and used a screen name of

“Kaylee13FL.” During the conversation, Rivera repeatedly asked Kaylee if they

could “hook up.” Kaylee told Rivera that she was 14 years old, and did not want

him to “freak out” about her age. Rivera responded that, based on the photographs

that accompanied Kaylee’s online profile, she looked older than 14 years old. He

also stated that they could still meet if she desired to do so, and that no one would

have to know about it. He then asked Kaylee if she was a police officer, and

informed her that he did not want to go to jail. Rivera next made suggestions to

Kaylee about various sexual activities they could engage in, and asked if he could



                                           6
call her. Kaylee gave him her telephone number, but asked him not to call her

without any advance warning because she would be in trouble if her mother found

out about her contact with him. She also informed him that she often would be

available on the internet because school was in recess for the summer. Later that

day, Rivera had a telephone conversation with Vicki Sumlin, a female undercover

agent posing as Kaylee. The government played an audio recording of this

conversation in open court.

      On June 4, 2007, Rivera and Kaylee had another online conversation.

During this conversation, Rivera and Kaylee discussed having sex with each other,

and Rivera asked Kaylee about the extent of her previous sexual experience.

Kaylee informed Rivera that her previous sexual experience was limited, and that

her friends had informed her that intercourse was painful. She reiterated her

request that he not call her when her mother was at home because she “would get

in big trouble.” Rivera asked Kaylee if she was willing to meet with him in person,

and she suggested that they meet at the high school on Mustang Way. Rivera asked

Kaylee how she would manage to “get out” in order to meet with him. He also

reasserted his concern that she could be a police officer. Rivera asked if they could

meet on the next day, and Kaylee agreed.

      On June 5, 2007, Rivera again contacted Kaylee online. Rivera asked



                                           7
Kaylee what time she wanted to meet, and they agreed that they would meet at the

high school at approximately 1:30 p.m. Kaylee informed Rivera that her mother

was at home, but that she would tell her mother that she was going to a friend’s

house. She also told Rivera that she would be wearing a blue skirt and a white top,

and Rivera told Kaylee that he would be driving a white van.

      After this conversation with Rivera, Spadafora contacted several additional

police officers in order to set up surveillance on Mustang Way. After setting up

surveillance, Spadafora observed that, just after 1:30, a white van drove by the high

school. The van’s driver’s side window was down, and Spadafora was able to

identify the driver as Rivera based on a photograph that Rivera sent to Kaylee

during their June 1 conversation. As noted above, Spadafora apprehended and

subsequently interviewed Rivera. During this interview, he learned that Rivera’s

home address was approximately 45 to 60 minutes away from the high school on

Mustang Way. Spadafora identified a set of photographs as the photographs that

he used for Kaylee’s profile, and these photographs were published to the jury.

      Sumlin testified that she was employed by the Brevard County Sheriff’s

Office, and that she had assisted Spadafora in investigating this case by playing the

role of a 14-year-old female during a telephone conversation with Rivera. On

cross-examination, she testified that she was 35 years’ old.



                                          8
       After the conclusion of the government’s case, Rivera moved for a judgment

of acquittal under Fed.R.Crim.P. 29. He argued that the evidence showed that he

had not believed that Kaylee was only 14 years old, pointing out that Kaylee

expressly mentioned her age only once during the online conversations. Thus, he

contended that he lacked the specific intent necessary to violate § 2422(b). Rivera

also argued that he did not take a substantial step toward inducing a minor into

engaging in sexual activity because he merely drove by the high school, and there

was no evidence that he slowed down or stopped at the high school. The court

denied the motion, finding that the government had presented sufficient evidence

to permit the case to go to a jury. Rivera did not present any evidence in his own

defense. The jury found Rivera guilty of attempt to persuade, induce, or entice a

minor into engaging in sexual activity. The court sentenced him to a term of 120

months’ imprisonment.

                                            II.

       Generally, “we review a district court’s denial of a motion to suppress

evidence as a mixed question of law and fact, with rulings of law reviewed de novo

and findings of fact reviewed for clear error.” United States v. Lindsey, 482 F.3d

1285, 1290 (11th Cir. 2007). In addition, we view the facts “in the light most

favorable to the prevailing party in [the] district court.” Id. It is within the district



                                            9
court’s province to make credibility determinations, and these determinations

generally are conclusive unless the court credits “exceedingly improbable”

testimony. United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002)

(quotation omitted).

      Where a defendant fails to raise an argument to the district court, we review

the argument on appeal only for plain error. United States v. Young, 350 F.3d

1302, 1305 (11th Cir. 2003) (holding that, because the defendant did not raise a

particular ground for suppression of the evidence before the district court, we

would review the claim only for plain error); see also United States v. Lewis, 492

F.3d 1219, 1222 (11th Cir. 2007) (recognizing that “the simple failure to assert a

right, without any affirmative steps to voluntarily waive the claim, is a forfeiture to

be reviewed under the plain error standard embodied in [Fed.R.Crim.P.] Rule

52(b)”). Under the plain-error standard of review, an appellant must demonstrate

that: (1) an error has occurred, (2) the error was plain, and (3) the error affected

substantial rights. Lewis, 492 F.3d at 1222. If these conditions are met, we may

exercise our discretion to correct the error, but only if it “seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Id. (quotation

omitted).

      Under Miranda, officers must advise an individual who is in custody of the



                                           10
following: (1) his right to remain silent; (2) that, if he chooses to speak, anything

he says can be used against him in court; (3) his right to consult with a lawyer and

have his lawyer be present during interrogation; and (4) an explanation that, if he is

indigent, a lawyer will be appointed to represent him. 384 U.S. at 467-73, 86 S.Ct.

at 1624-27. Statements obtained in violation of Miranda, whether exculpatory or

inculpatory, are not admissible at trial. Id. at 444, 86 S.Ct. at 1612. The

government must “prove by a preponderance of the evidence that the defendant

waived his rights voluntarily, knowingly, and intelligently.” United States v.

Glover, 431 F.3d 744, 748 (11th Cir. 2005). We have explained that:

      The standard for evaluating the voluntariness of a confession is
      whether a person made an independent and informed choice of his
      own free will, possessing the capability to do so, his will not being
      overborne by the pressures and circumstances swirling around him.
      Voluntariness depends on the totality of the circumstances and must
      be evaluated on a case-by-case basis.

United States v. Castaneda-Castaneda, 729 F.2d 1360, 1363 (11th Cir. 1984)

(quotation omitted). A police officer’s trick, standing alone, will not render a

confession involuntary. Id. at 1363.

      Here, because Rivera failed to clearly raise his involuntariness argument

before the district court, we review this argument on appeal for plain error.

Rivera cannot demonstrate error, let alone plain error, because, under the totality of

the circumstances, Spadafora’s statement that Kaylee was missing was not

                                           11
sufficient to cause Rivera’s subsequent, post-Miranda statements to be involuntary.

Both the documentary evidence and the audio recording of Rivera’s interview with

Spadafora demonstrated that Rivera was informed of his Miranda rights. By his

own admission, Rivera’s interview with Spadafora was endured for only 20

minutes. It was within this brief time frame that Rivera made inculpatory

statements to Spadafora. Moreover, Spadafora averred that, apart from his

statement that Kaylee was missing, he did not coerce or pressure Rivera into

waiving his Miranda rights and making a statement. Based on this evidence, it

appears that Spadafora did not engage in any coercion apart from stating that

Kaylee was missing, and that there were not any aggravating factors that would

have amplified the coercive potential of this statement. While Rivera contends

that media attention to missing girls in Florida heightened his concern for the

fictional Kaylee, he also states that these actual disappearances occurred in 2008

and 2009, which was well after he was questioned by Spadafora on June 5, 2007.

Accordingly, the district court did not plainly err in denying Rivera’s motion to

suppress.

                                         III.

      “We review a verdict challenged for sufficiency of the evidence de novo,

resolving all reasonable inferences in favor of the verdict.” United States v. Yost,



                                          12
479 F.3d 815, 818 (11th Cir. 2007). We will not “disturb the verdict unless no trier

of fact could have found guilt beyond a reasonable doubt. Id. (quotation omitted).

         Under 18 U.S.C. § 2422(b), it is illegal for an individual to attempt to

knowingly persuade, induce, entice, or coerce any individual under the age of 18 to

engage in illicit sexual activity. 18 U.S.C. § 2422(b). “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 persuaded a minor to engage in an illicit sexual activity, but did not

actually engage in a sex act, he still would have violated § 2422(b). Id. An actual

minor need not be involved in a case in order for a defendant to be found guilty of

attempt under § 2422(b). United States v. Root, 296 F.3d 1222, 1228 (11th Cir.

2002).

         In order to sustain a conviction for attempt, the government must show that

the defendant: (1) specifically intended to commit the crime charged, and (2) took

a substantial step toward committing the offense. Yost, 479 F.3d at 819. A

defendant takes a substantial step toward committing an offense where his

“objective acts mark his conduct as criminal such that his acts as a whole strongly

corroborate the required culpability.” Murrell, 368 F.3d at 1288. In the context of



                                            13
examining a defendant’s attempt conviction under § 2422(b), we have held that a

defendant demonstrated his specific intent when, after learning that the purported

minor that he was communicating with was underage, he suggested that they meet

in order to engage in sexual activity. Yost, 479 F.3d at 819. We have also held that

a defendant took a substantial step toward violating § 2422(b) by arranging to meet

with a purported minor at a specific time and place in order to engage in sexual

activity, even though the defendant did not actually arrive at the meeting place. Id.

at 819-20.

      Here, the district court did not err by denying Rivera’s Rule 29 motion,

because the evidence was more than sufficient to permit a reasonable jury to

conclude that Rivera had the specific intent to induce a minor into engaging in

sexual conduct, and took a substantial step toward the same. As for Rivera’s

intent, Kaylee expressly informed him that she was 14 years old, and he

acknowledged this information by responding that she looked older than 14 in her

profile photographs. On at least two occasions, Rivera asked Kaylee if she was a

police officer, a concern that he would not have had unless he knew that they were

discussing illegal activity. Although Kaylee may have expressly stated her age

only once, she repeatedly made statements indicating that she was a minor—she

informed Rivera that she would be in trouble if her mother found about their



                                          14
communications, and that she was on the internet because school was in recess for

the summer. Rivera implicitly acknowledged that Kaylee was under a guardian’s

care when he asked her how she would manage to “get out” in order to meet with

him. The foregoing facts leave little doubt that Rivera specifically intended to

meet with a minor in order to persuade her to engage in sexual activity. While

Rivera argues that Kaylee did not look like she was only 14 years old in her

pictures, and did not sound like a 14-year-old on the telephone, the photographs

and audio recording of the telephone call were presented to the jury, and the other

evidence presented at trial supports the jury’s verdict.

      In addition, Rivera took a substantial step toward violating § 2422(b) by

taking the following actions: (1) making sexually explicit statements to Kaylee;

(2) calling her on the telephone; (3) making plans to meet with her at a specific

time and place; and (4) driving past the meeting location, which was at least 45

minutes away from his home, at the specified time. Accordingly, his conviction is

affirmed.

      AFFIRMED.




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