                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT            FILED
                          ________________________ U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                 No. 07-16002                    DEC 16, 2008
                             Non-Argument Calendar             THOMAS K. KAHN
                           ________________________                CLERK


                      D. C. Docket No. 07-00060-CR-TWT-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

JOSEPH MICHAEL MOONEY,
a.k.a. bjmjbm,

                                                              Defendant-Appellant.

                           ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                        _________________________

                               (December 16, 2008)

Before CARNES, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

      Joseph Michael Mooney appeals his convictions and sentence of 360 months

of imprisonment for interstate enticement of a minor to engage in sexual activity
and aggravated sexual abuse with a minor. 18 U.S.C. §§ 2422(b), 2241(c).

Mooney challenges the sufficiency of the evidence, the jury charge, evidentiary

rulings, and the constitutionality of his sentence. We affirm.

                                I. BACKGROUND

      In December 2005, Mooney initiated an online conversation with Joanne

Southerland, an agent of the Federal Bureau of Investigation, in an internet chat

room that was previously titled “Incest.” Southerland portrayed herself as a 41-

year-old mother of a ten-year-old daughter, Sydney. Mooney asked Southerland if

she allowed her daughter to be sexually active, and Southerland said no. Later in

the conversation, Mooney asked Southerland if she wanted to introduce her

daughter to intercourse. Mooney stated that he allowed his twelve-year-old son to

be sexually active and asked about Sydney’s sexual development and whether

Southerland would allow a man to “play with her.” Southerland replied that she

had considered the possibility, but she thought that Sydney was too young.

Mooney asked if Sydney would pose for him.

      Mooney and Southerland continued to communicate online and also

exchanged sporadic telephone calls for over a year. Mooney would often initiate

their conversations and, on occasion, Southerland would ignore Mooney’s

messages or end their conversation abruptly to determine if Mooney was genuinely



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interested in Sydney. In their chat sessions, Mooney described graphically the acts

he wanted to perform on Sydney and sent explicit pictures to Southerland,

including pictures of his erect penis. Mooney also asked numerous, explicit

questions about Sydney’s sexual development; stated that he wanted to meet

Sydney before she got “a lot older” and began menstruating; and asked

Southerland to groom Sydney for sexual activity by allowing Sydney to see her

masturbate, encouraging Sydney to do the same, and talking to Sydney about

intercourse.

      Mooney expressed concern in several chat sessions that both he and

Southerland could “get . . . in trouble,” but made preparations to meet Southerland

and Sydney in May 2006. Southerland asked if Mooney had any sexual experience

with young girls and Mooney explained that he had engaged in sexual activity with

girls as young as six years old. When Mooney had to postpone his trip, he

expressed concern that Southerland would allow another man to deflower Sydney.

In January 2007, Southerland told Mooney that a man in Ohio had expressed an

interest in “an ongoing” thing with Sydney. Mooney replied that he wanted “to be

the one to make a woman out of Sydney,” and he made final plans to meet

Southerland.




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      Agent Herb Stapleton observed Mooney leave his home in Missouri and

head to Atlanta, Georgia. When Mooney climbed out of his car to meet

Southerland, federal agents placed Mooney under arrest. Mooney volunteered to

agents Cameron Roe and Jeff Wright that he planned to engage in sexual activities

with Southerland’s daughter. The agents found a condom in Mooney’s pocket.

      Mooney was charged in a two-count indictment for interstate enticement of a

minor to engage in sexual activity and aggravated sexual abuse with a minor. 18

U.S.C. §§ 2422(b), 2241(c). Mooney pleaded not guilty and mentioned that he

planned to argue entrapment. The government notified Mooney of its plan to

introduce evidence seized from his computer, including “multiple” photographs of

adult men and young girls having intercourse and “hundreds” of internet chat

sessions involving sex with children.

      Mooney filed a motion in limine to limit the amount of government exhibits.

Mooney argued that the pictures and chat sessions were cumulative and more

prejudicial than probative. The government responded that Mooney’s chat

sessions and collection of child pornography were relevant to establish his intent to

have sex with a young girl. The district court denied Mooney’s motion.

      At trial, the government submitted evidence relevant to Mooney’s intent to

commit the sex crimes, including the chat sessions between Mooney and



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Southerland, “samplings” taken from over 1600 other chat sessions involving sex

with children, and photographs of minors and adults performing sexual acts. After

a government agent described the contents of the photographs, the district court

instructed the jury that it could consider the evidence of Mooney’s other acts only

to determine if he intended to commit the criminal acts charged in the indictment.

The district court admitted over Mooney’s objection pictures of Mooney and male

genitalia found on Mooney’s computer.

      After the government rested, Mooney moved for a judgment of acquittal.

Mooney argued that there was no evidence to prove that he “induced or enticed an

actual child” or he intended to use force to accomplish the sex crimes. The district

court denied the motion.

      Mooney testified that after he had learned that his daughters were molested

as children, he had conducted online research and visited chat rooms to understand

his daughters’ trauma and to protect his grandchildren. Mooney stated that

Southerland “pressured” him to visit Georgia; he “played a role” to engage

Southerland in further discussions; became “concerned” that Southerland would

allow another man to abuse Sydney; and had a “personal crusade” to protect

Sydney. Mooney testified that he believed Southerland’s story was a “farce,” but

he drove to meet her in case Southerland might abuse Sydney. If he met



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Southerland, Mooney allegedly intended to report Southerland to the authorities

and to use evidence on his computer to incriminate Southerland.

      The district court held a charge conference. After the government objected

to the jury instructions about interstate enticement proposed by the court, Mooney

asked the district court to “give the pattern instruction.” Mooney also asked the

court to add to its charge two instructions about the appropriate use of bad act

evidence and character evidence.

      After the government rested, the district court gave counsel a copy of the

final jury charge. Mooney made one objection to the charge and, when asked if he

had any further objections, Mooney replied, “No, Your Honor.” Mooney did not

object after the district court instructed the jury. The jury found Mooney guilty of

both crimes.

      At the sentencing hearing, Mooney asked for a sentence below the guideline

range. Mooney argued that the “requirement of a sentence imposed by the

guidelines as applied as mandated by the statutory minimum . . . borders on

unconscionable . . . .” The district court denied the motion. The district court

sentenced Mooney to concurrent terms of 120 months of imprisonment for

interstate enticement and 360 months of imprisonment for aggravated sexual

assault with a minor and to supervised release for life.



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                          II. STANDARDS OF REVIEW

      We review de novo challenges to the sufficiency of the evidence and view

the evidence in the light most favorable to the government. United States v.

Futrell, 209 F.3d 1286, 1288 (11th Cir. 2000). We review evidentiary rulings for

an abuse of discretion. United States v. Lamons, 532 F.3d 1251, 1265 n.26 (11th

Cir. 2008). “When a defendant fails to object to an error before the district court,

we review the argument for plain error.” United States v. Raad, 406 F.3d 1322,

1323 (11th Cir. 2005) (per curiam).

                                 III. DISCUSSION

      Mooney presents arguments about four matters. First, Mooney argues that

two jury instructions were erroneous. Second, Mooney challenges the sufficiency

of the evidence supporting his conviction. Third, Mooney argues that the district

court abused its discretion in admitting evidence of prior bad acts. Fourth, Mooney

challenges his sentence. We address each issue in turn.

   A. Mooney Invited the Alleged Error in the Jury Instruction About Interstate
  Enticement, and the District Court Did Not Plainly Err in the Instruction About
                            Aggravated Sexual Assault.

       Mooney argues for the first time on appeal that the jury instructions were

incomplete. As to count one, Mooney complains that the district court should have

defined what conduct constituted a “substantial step” to accomplish interstate



                                           7
enticement because the jury could have convicted him based on evidence of mere

preparation. As to count two, Mooney argues that the district court should have

instructed the jury that to find Mooney guilty of aggravated sexual abuse, the

government had to prove that Mooney attempted to engage in a sexual act with a

minor. These arguments fail for different reasons.

      Mooney waived his right to challenge the instruction about interstate

enticement. The district court gave the pattern jury instruction at Mooney’s

request. Mooney invited any error in the charge. See United States v. Silvestri,

409 F.3d 1311, 1337 (11th Cir. 2005).

      The district court did not plainly err in its instruction about aggravated

sexual abuse. In the absence of a request for specific instructions or an objection to

the jury charge, we will reverse for error in a jury instruction only if there is a

“‘likelihood of a grave miscarriage of justice’” or the error is “so obvious that

failure to notice it would seriously affect the fairness, integrity, or public reputation

of judicial proceedings.” United States v. Solomon, 856 F.2d 1572, 1577 (11th

Cir. 1988) (citing United States v. Atkinson, 297 U.S. 157, 160, 56 S. Ct. 391, 392

(1936)). Aggravated sexual abuse requires proof of the following two elements:

(1) interstate travel (2) with the intent to engage in a sexual act with a minor. See

Eleventh Circuit Criminal Pattern Jury Instruction 11. Culpability turns on the



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illegal purpose of the travel, not the commission or attempt to commit the sexual

act. Cf. United States v. Root, 296 F.3d 1222, 1227–31 (11th Cir. 2002)

(conviction for transportation with intent to engage in criminal sexual activity

“turns simply on the illegal purpose for which [the defendant] traveled” and not the

inability to complete the sexual act because the victim was fictitious). Mooney

was not entitled to an instruction that would have mislead the jury about the

elements of his crime.

           B. The Government Introduced Sufficient Evidence to Support
                             Mooney’s Conviction.

      Mooney challenges the sufficiency of the evidence underlying his

convictions on three grounds. First, he argues that the government did not prove

that he intended to sexually abuse Sydney. Second, Mooney argues that the

government did not prove that he took a substantial step to commit the crime.

Third, Mooney argues that he cannot be guilty as a matter of law because no actual

child was involved in his crimes. These arguments fail.

      The government proved that Mooney intended to engage in a sexual act with

Sydney. The content and tenor of Mooney’s online discussions with Southerland,

the lewd pictures that he sent, his decision to travel to Georgia when he learned she

might be deflowered by another man, and his arrival with a condom in his pocket

all suggest that Mooney was interested in sexual activity. Mooney testified that he

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traveled to Georgia to protect Sydney, but the jury was free to disbelieve his story.

We consider Mooney’s statement that the jury discredited as substantive evidence

of his guilt. See United States v. Brown, 53 F.3d 312, 314 (11th Cir. 2007). The

jury was entitled to find that Mooney intended to sexually abuse Sydney.

      Mooney took several steps to accomplish the crime. Mooney planned in

detail his trip and coordinated his travel plans with Southerland. Mooney drove

from Missouri to Georgia and arrived at the time and location designated by

Southerland. See United States v. Yost, 479 F.3d 815, 819 (11th Cir. 2007). A

reasonable jury could find that Mooney traveled to Georgia to have intercourse

with a minor.

      We have rejected Mooney’s argument that an actual child must be involved

in these sexual abuse crimes. That Mooney could not engage in a sexual act

because his intended victim was fictitious is irrelevant; it is his intent and conduct

that establish guilt. Root, 296 F.3d at 1227–31. The absence of an actual victim is

also irrelevant to the calculation of his sentence. See United States v. Lebovitz,

401 F.3d 1263, 1267–68 (11th Cir. 2005); United States v. Murrell, 368 F.3d 1283,

1289 (11th Cir. 2004). Mooney concedes that these issues have been resolved

against him.




                                           10
 C. The Chat Sessions and Photographs Discovered on Mooney’s Computer Were
                                 Admissible.

      Mooney argues that the district court abused its discretion and violated his

right to due process by allowing the government to introduce chat sessions and

child pornography discovered on his computer. The government responds that the

evidence was relevant to prove Mooney’s intent to pursue and prey on young

children. We agree with the government.

      The district court did not abuse its broad discretion by admitting the chat

sessions and photographs into evidence. Mooney’s primary defense at trial was

that he lacked the intent to sexually abuse Sydney and drove to Georgia to protect

her. Evidence that Mooney possessed child pornography and engaged in sexually

explicit conversations about minors was relevant to determine the purpose of

Mooney’s trip. See Fed. R. Evid. 404(b). The probative value of the evidence

outweighed any prejudice created by its admission because it contradicted

Mooney’s testimony that the content of chat rooms made him “sick” and he visited

internet sites to prevent the sexual abuse of children. See United States v. Hersh,

297 F.3d 1233, 1254 n. 31 (11th Cir. 2002). The limiting instruction given by the

district court mitigated any prejudicial effect of the evidence. See United States v.

Boon San Chong, 829 F.2d 1572, 1576 (11th Cir. 1987).




                                          11
                      D. Mooney’s Sentence Is Constitutional.

      Mooney argues for the first time on appeal that his sentence for aggravated

sexual abuse with a minor is unconstitutional, but this argument fails. A

mandatory minimum sentence of 360 months does not violate the Eighth

Amendment, Mooney’s right to due process, or the separation of powers. See

United States v. Pope, 461 F.3d 1331, 1337 (11th Cir. 2006); Raad, 406 F.3d at

1323; United States v. Willis, 956 F.2d 248, 250–51 (11th Cir. 1992). The district

court did not plainly err by imposing the mandatory minimum for Mooney’s crime.

                               IV. CONCLUSION

      Mooney’s convictions and sentences are AFFIRMED.




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