                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                   FILED
                                                        U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                             No. 04-14825                     August 12, 2005
                         Non-Argument Calendar             THOMAS K. KAHN
                       ________________________                CLERK


                   D. C. Docket No. 04-20040-CR-JLK

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

ANDRES ROJAS,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________
                             (August 12, 2005)




Before BLACK, DUBINA and CARNES, Circuit Judges.

PER CURIAM:
      Andres Rojas appeals his conviction for using a facility of interstate

commerce to entice a person under 18 years of age to engage in criminal sexual

contact, in violation of 18 U.S.C. § 2422(b). Rojas asserts 18 U.S.C. § 2422(b) is

unconstitutionally void for vagueness, because: (1) it fails to clearly define the

proscribed conduct; (2) multiple uses of the word “any” cause the statute to be

ambiguous; and (3) the statute implies the requirement the offense involves some

form of transportation in interstate commerce. Rojas also contends the district

court abused its discretion by permitting the Government to introduce, pursuant to

Federal Rule of Evidence 404(b), uncharged “bad” acts such as conversations

Rojas had with another under-aged female Internet user. The district court did not

err, and we affirm Rojas’s conviction.

                                  I. DISCUSSION

A.    18 U.S.C. § 2422(b)

      The interpretation of the constitutionality of § 2422(b) is a question of law

subject to de novo review. See United States v. Panfil, 338 F.3d 1299, 1300 (11th

Cir. 2003). Section 2422(b) provides in relevant part as follows:

      Whoever, using . . . any facility or means of interstate . . . commerce, . . .
      knowingly persuades, induces, entices, or coerces any individual who has
      not attained the age of 18 years, to engage in . . . any sexual activity for
      which any person can be charged with a criminal offense, or attempts to do
      so, shall be . . . imprisoned not less than 5 years and not more than 30 years.



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18 U.S.C. § 2422(b) (emphasis added). “The void-for-vagueness doctrine requires

that a penal statute ‘define the criminal offense with sufficient definiteness that

ordinary people can understand what conduct is prohibited and in a manner that

does not encourage arbitrary and discriminatory enforcement.’” United States v.

Marte, 356 F.3d 1336, 1342 (11th Cir. 2004) (citation omitted).

      We recently held 18 U.S.C. § 2422(b) was not unconstitutionally overbroad

or vague. Panfil, 338 F.3d at 1301. In Panfil, the defendant, like Rojas, used the

Internet to persuade an agent, who was posing as a 13-year-old girl, to meet him to

engage in sexual activity. Id. at 1300. The defendant in Panfil asserted 18 U.S.C.

§ 2422(b) was unconstitutionally overbroad and vague by relying on Reno v.

ACLU, 117 S. Ct. 2329 (1997), in which the Supreme Court invalidated provisions

of the Communications Decency Act (CDA), 47 U.S.C. §§ 223 et seq. Panfil, 338

F.3d at 1301. In Reno, the Supreme Court ruled because the CDA “effectively

suppresse[d] a large amount of speech that adults have a constitutional right to

receive and to address to one another,” the CDA might prohibit a parent from

sending contraceptive information over the internet to his teenager. Reno, 117 S.

Ct. at 2346–48. In ruling the CDA was overbroad, the Supreme Court focused on

the terms “indecent” and “patently offensive,” which the Court found were not




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specifically defined so that such terms encompassed material with serious

educational and other value. Reno, 117 S. Ct. at 2347.

      Similarly, the defendant in Panfil contended because the terms “entice” and

“induce” used in 18 U.S.C. § 2422(b) were not defined internally or by cross-

reference, the statute had a chilling effect on those who wish to engage in

legitimate speech with minors on sexual topics. Panfil, 338 F.3d at 1301.

However, we held § 2422(b) did not suffer from the same constitutional infirmity

as the CDA because in § 2422(b) “[t]he words ‘entice’ and ‘induce’ [were] not

ambiguous or subject to varying standards.” Id.

      The defendant in Panfil also asserted 18 U.S.C. § 2422(b) was void for

vagueness. He argued “the same failure to define ‘entice’ and ‘induce,’ as well as

‘sexual activity for which any person can be charged with a criminal offense’ le[ft]

ordinary citizens to guess at what communications would constitute illegal

enticement or inducement.” Id. In response, we held the terms cited by the

defendant in Panfil had plain and ordinary meaning and the statute discouraged

unscrupulous enforcement by ensuring “that only those who ‘knowingly’

engage[d] in the illegal conduct are subject to prosecution.” Id.

      Section 2422(b) is not unconstitutionally vague. The statute clearly states

the proscribed conduct, as admitted to by Rojas, as using a facility of interstate



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commerce to entice a person under 18 years of age to engage in criminal sexual

contact. Regarding the interstate commerce requirement, Rojas stipulated and

agreed that the “Internet is a facility or means of interstate and foreign commerce.”

The multiple uses of the word “any” within 18 U.S.C. § 2422(b) do not render the

statute unconstitutionally vague. Even though the Panfil defendant focused on the

words “entice” and “induce” in arguing the statute was unconstitutionally vague,

we dismissed the defendant’s argument by holding the phrase “sexual activity for

which any person can be charged with a criminal offense” discourages

unscrupulous enforcement by ensuring “only those who ‘knowingly’ engage[d] in

the illegal conduct are subject to prosecution.” See Panfil, 338 F.3d at 1301. At

trial, Rojas stated he recognized the boundaries of the law regarding the legality of

oral sex between him and a 13-year-old girl. See Marte, 356 F.3d at 1342.

Moreover, Rojas acknowledged having sex with a minor is illegal. The uses of

“any” in the statute define the criminal offense with sufficient definiteness by

stating who is subject to the statute and what conduct is prohibited. See Panfil, 338

F.3d at 1301. The manner in which the other uses of “any” are used does not

encourage arbitrary and discriminatory enforcement since the statute applies only

to those who “knowingly” engage in the illegal conduct. See id.




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B.     Rule 404(b)

       We review the district court’s rulings on admission of evidence for an abuse

of discretion. United States v. Henderson, 409 F.3d 1293, 1297 (11th Cir. 2005).

Federal Rule of Evidence 404(b) “is a rule of inclusion, and . . . accordingly 404(b)

evidence, like other relevant evidence, should not be excluded when it is central to

the prosecution’s case.” United States v. Jernigan, 341 F.3d 1273, 1280 (11th Cir.

2003) (internal citations and quotations omitted). The rule states:

       Evidence of other crimes, wrongs, or acts is not admissible to prove
       the character of a person in order to show action in conformity
       therewith. It may, however, be admissible for other purposes, such as
       proof of motive, opportunity, intent, preparation, plan, knowledge,
       identity, or absence of mistake or accident . . . .

Fed. R. Evid. 404(b). We have established that, to be admissible: (1) Rule 404(b)

evidence must be relevant to an issue other than the defendant’s character; (2) the

prior act must be proved sufficiently to permit a jury determination the defendant

committed the act; and (3) the evidence’s probative value cannot be substantially

outweighed by its undue prejudice, and it must satisfy Rule 403.1 Jernigan, 341

F.3d at 1280.




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           Federal Rule of Evidence 403 provides, “[a]lthough relevant, evidence may be excluded
if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.”

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      Regarding the first prong, similarity of extrinsic acts to the offenses with

which the defendant is charged is the standard by which relevancy is measured

under 404(b). United States v. Williams, 816 F.2d 1527, 1531 (11th Cir. 1987).

Regarding the third prong, we have stated, “the probative value of the evidence

must not be substantially outweighed by unfair prejudice. . . . [T]his determination

lies within the sound discretion of the district judge and calls for a common sense

assessment of all the circumstances surrounding the extrinsic offense, including

prosecutorial need, overall similarity between the extrinsic act and the charged

offense, as well as temporal remoteness.” Jernigan, 341 F.3d at 1282 (internal

citations and quotations omitted) (emphasis in original).

      The district court did not abuse its discretion in admitting evidence of

Rojas’s chats with another under-aged Internet user, mariamiagirl. The evidence

was relevant to show Rojas’s intent to engage in sexual activity with an under-aged

girl since, as admitted by Rojas, he knew at the time that mariamiagirl was 14 years

old, and he had asked mariamiagirl some of the same sexuall- explicit questions

that he had asked lisa_n_miami. See Jernigan, 341 F.3d at 1280. Moreover, the

evidence, as a prior act, was sufficiently proved to permit a jury determination that

Rojas communicated with mariamiagirl in the same way and manner he

communicated with lisa_n_miami since the Agent acting as mariamiagirl testified



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to the communication with Rojas, the Agent presented printouts of his

communication with Rojas, and Rojas admitted to asking mariamiagirl some of the

same sexually explicit questions he had asked lisa_n_miami. See Jernigan, 341

F.3d at 1280. Lastly, the evidence’s probative value was not substantially

outweighed by its undue prejudice since the evidence was similar to Rojas’s illegal

conduct with lisa_n_miami, and since Rojas stated in his defense he was not

looking for under-aged girls on the Internet, was not picturing an under-aged girl in

his head, and had no intention of engaging in sexual conduct with an under-aged

girl. Thus, the evidence was needed by the prosecution to show Rojas’s intent to

have sexual contact with under-aged girls. See Jernigan, 341 F.3d at 1280–82.

                                II. CONCLUSION

      We conclude 18 U.S.C. § 2422(b) is not unconstitutionally void for

vagueness. Additionally, the district court did not err in admitting as evidence

conversations Rojas had with another under-aged female Internet user.

      AFFIRMED.




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