          United States Court of Appeals
                        For the First Circuit


No. 17-2019

                      UNITED STATES OF AMERICA,

                              Appellee,

                                  v.

                 ROBERT RANG, t/n Robert Joseph Rang,

                        Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Indira Talwani, U.S. District Judge]


                                Before

                        Lynch, Circuit Judge,
                     Souter,* Associate Justice,
                     and Kayatta, Circuit Judge.


     Seth Kretzer and Law Offices of Seth Kretzer on brief for
appellant.
     Anne Paruti, Assistant United States Attorney, and Andrew E.
Lelling, United States Attorney, on brief for appellee.


                            March 26, 2019


	



     * Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
               KAYATTA, Circuit Judge.     In July 2017, a jury convicted

Robert Rang under 18 U.S.C. § 2422(b) of attempted coercion and

enticement of a minor to engage in sexual activity for which Rang

could be charged.       Rang appeals his conviction, arguing that the

district court erred by denying in part his motion to suppress

statements made during an interrogation.         Rang also challenges the

sufficiency of the evidence.      For the following reasons, we affirm

his conviction.

                                    I.

                                    A.

               Eight-year-old Minor A1 met Rang online while playing

the multiplayer video game Call of Duty on PlayStation.2          Minor A

and Rang (who was then approximately twenty-five years old) played

together nearly every other day for an extended period of time and

communicated orally via headsets with microphones.          Minor A told

Rang his age and grade in school.        Rang told Minor A that he lived

in Pennsylvania, which was true, and worked at Sony, which was

not.       Minor A knew that Rang was an adult.

               In March 2014, Rang and Minor A became "friends" on

Facebook.      Rang asked for and obtained Minor A's home phone number


       1
       Between January 1, 2014 and December 29, 2014, the timeframe
alleged in the indictment, Minor A turned nine years old.
     2 A PlayStation is a gaming system that can be connected to

the internet, allowing users across the world to play with one
another. Headsets allow users to talk to one another, and users
can also communicate through typed messages.


                                   - 2 -
and home address.         Rang called Minor A's home phone to talk to him

and sent Minor A messages through TextNow, an online messaging

application that Rang instructed Minor A to download.            Rang gifted

Minor A PlayStation cards, ranging from $20 to $50, that could be

used to buy PlayStation games or to purchase items within games.

Rang also let Minor A access his "PSN" membership, which allowed

Minor A to play certain games for free.          Rang used his fictitious

position at Sony to manipulate Minor A, such as by telling Minor A

that Sony would block Minor A's PlayStation account access unless

Minor A played exclusively with Rang.

              When Rang and Minor A played private games together,

Rang called Minor A "babe," and on numerous occasions said that he

loved Minor A.       Rang also talked to Minor A about masturbation, a

term       with   which    Minor A   was   unfamiliar.    Rang    explained

masturbation to Minor A and told Minor A to search online for

specific videos of men masturbating.            On October 28, 2014, Rang

sent the following messages to Minor A3:          "Omg I love u so much ur

making my dick ao hard"; "Can we masturbate babe im so hard we can

do it super fast if not it's okay"; "Ok and its ok i understand u

don't want to it's ok not mad i'll do it later by myself i wish i

had a few pics of you naked."

              On October 30, 2014, Rang wrote:




       3   We reproduce verbatim the text of the messages.


                                      - 3 -
        [I] really want to play with u since Friday u wont be
        home or on and also i might be comming out with in the
        month of nov-ember to see u i really want to be with u
        in person i really really really want us to live together
        that would make me more happy then u will ever know.

Minor A testified that he thought Rang was planning to visit him.

                                   B.

              On December 29, 2014, upwards of ten law enforcement

officers executed a federal search warrant at Rang's Pennsylvania

home.       Rang's father let the officers into the home, where they

found Rang on the second floor and handcuffed him.            Michael

Connelly, a United States Postal Inspector, and Robert Smith, a

Massachusetts State Trooper, led Rang to the third-floor attic for

questioning.      The interrogation that followed began at 8:41 a.m.

and lasted two hours and twenty-two minutes, the audio of which

was recorded.4

              At the beginning of the interrogation, Connelly told

Rang that "one of the things that we have to do and we want to

make sure that you understand is just make sure you understand

your rights."       Rang was then given printed Miranda warnings to

read.       As Rang read the rights, he said, "This is just Miranda

rights," and "I know my Miranda rights."       The following colloquy

then took place between Smith and Rang:


        4
       The district court found, and the government does not
dispute on appeal, that Rang was in custody at the time of the
interrogation. Neither party disputed below that the questioning
constituted an interrogation.


                                 - 4 -
     SMITH:      Let me, if you don't mind.     I'll read them
                 aloud to you as well, okay?

                 . . .

                 Cause I want to make sure you've got through
                 it thoroughly. You're able to read these okay
                 without eyeglasses?

     RANG:       I understand.   I've been arrested before.   I
                 kind of know.

     SMITH:      All right, but just cause I want to make sure
                 you got through this thoroughly, okay?

     RANG:       I know--

     SMITH:      Before we ask any questions we must understand
                 that you understand them, okay?

     RANG:       I understand them.

             Smith nevertheless proceeded to read Rang his Miranda

rights, after which Rang confirmed that he understood what had

been read to him.    Rang signed and dated an acknowledgment that he

had received his rights, that his rights had been read to him, and

that he understood his rights.

             The interrogating officers then asked Rang to read a

Miranda waiver.     Rang read the waiver aloud.    After apparently

mispronouncing the word "coercion" in the sentence "[n]o promises

or threats have been made to me and no pressure or coercion . . .

of any kind has been used against me," Rang explained that it meant

that the officers weren't "threatening [him] to get any questions

or answers."




                                 - 5 -
                Connelly   informed   Rang     that   it   was   a    felony    under

18 U.S.C. § 1001 to lie to a federal agent.                  He also told Rang

that "if there's a question that you don't like . . . you can

say . . . I want to skip over that.               You know, we'll talk about

that later.       No problem.     I've got no problem with that.              I would

rather you not answer a question than lie to me about it."

                Connelly explained that he would report the results of

the interrogation to the U.S. Attorney's Office.                     Rang then said

to Connelly, "[j]ust want to bring up to you, I just got up so

bear with me on this, all right? . . . My mind's not 100% working

right now."        Connelly and Rang then had the following exchange:

        CONNELLY: If you don't remember something, I don't know
                  is an okay answer. I don't want you to say--

        RANG:       I don't like those.

        CONNELLY: --I don't know to everything.

        RANG:        I don't know.   I don't like those kind of
                     answers. I'd rather think it out beforehand.

        CONNELLY: And, okay, so that's, we're on the same page.

        RANG:       Yes.

        CONNELLY: And if you have any questions for me, stop me
                  and say, you know . . . I don't understand
                  what you're asking.

                During the course of the interrogation, Rang admitted

that    he   had:      (1) sent    Minor A     sexually     explicit      messages;

(2) reserved a hotel in Yarmouth, Massachusetts for a weekend in

June;    (3) instructed      Minor A    to     download    TextNow,      an    online


                                       - 6 -
messaging application; and (4) sent Minor A PlayStation cards as

gifts.   Rang also admitted to being sexually attracted to minor

boys and acknowledged the illegality of child pornography.

             Pursuant to the search warrant, law enforcement seized

Rang's iPhone, which contained, among other evidence, Minor A's

phone numbers and email address and calendar information regarding

Rang's hotel reservation for June 2015.                   Handwritten notes in

Rang's bedroom contained Minor A's contact information, Minor A's

PlayStation     account     names,    Minor A's       email     addresses      and

passwords, and a note stating "Money goal to be saved by June to

go see [Minor A]" with a dollar amount of $1,300.

                                      C.

             Rang was indicted on February 26, 2015, for attempted

coercion and enticement of a minor in violation of 18 U.S.C.

§ 2422(b).      In   due   course,   Rang    filed    a    motion   to    suppress

statements obtained from him by Connelly and Smith during the

interrogation.       Before    the   government      responded,     the    parties

executed a plea agreement.       See Fed. R. Crim. P. 11(c)(1)(C).

             Six weeks later, Rang informed the district court by

letter that he wished to withdraw his plea.                 The district court

rejected the plea agreement, holding that it was not entered into

knowingly and voluntarily.

             After   further   briefing,     the     district   court      held   a

suppression hearing.       The district court granted Rang's motion to


                                     - 7 -
suppress all statements obtained during the interrogation before

the officers gave Rang his Miranda rights.           United States v. Rang,

No. 1:15-CR-10037-IT-1, 2017 WL 74278, at *8 (D. Mass. Jan. 6,

2017).   It denied Rang's motion with respect to the statements

made after Rang waived his Miranda rights.            Id.

            The case was tried over a seven-day period.             The jury

convicted   Rang   on    the    sole   count   of   attempted   coercion   and

enticement of a minor.         The court sentenced Rang to twelve years'

imprisonment and fifteen years' supervised release.              This appeal

followed.

                                        II.

                                        A.

            Rang challenges the district court's refusal to suppress

his statements made during the interrogation after he received

Miranda warnings.       We review a district court's findings of fact

on a motion to suppress for clear error and afford de novo review

to questions of law.       See United States v. Coombs, 857 F.3d 439,

445-46 (1st Cir. 2017).

            A Miranda waiver must be made knowingly, intelligently,

and voluntarily.    See United States v. Sweeney, 887 F.3d 529, 536

(1st Cir. 2018).    Rang argues that his mental capacity inhibited

his ability to waive his rights.               Indeed, the district court

credited evidence of Rang's "borderline intellectual functioning,"

including testimony from a licensed and board-certified clinical


                                       - 8 -
neuropsychologist who evaluated Rang's cognitive abilities that

Rang "has an impaired ability to understand complex or abstract

concepts, to apply logic, and to use sound judgment."            Rang, 2017

WL 74278, at *5. The neuropsychologist also testified that "people

who   interact   with   [Rang]   might   not   readily   be   aware   of    his

impairment, due to his strong social skills, average vocabulary

level, and ability to follow straightforward directions."             Id.

           The district court nevertheless denied the motion to

suppress to the extent it included any statements made after Rang

received Miranda warnings and waived his right not to speak.               Id.

at *8.   It reasoned that Rang had knowingly, intelligently, and

voluntarily waived his rights and that Connelly and Smith did not

use coercive tactics to overbear Rang's will.            Id. at *4-8.        We

will uphold the district court's decision if "any reasonable view

of the evidence supports the decision."         United States v. Materas,

483 F.3d 27, 32 (1st Cir. 2007) (quoting United States v. Hawkins,

279 F.3d 83, 85 (1st Cir. 2002)).

           The type of diminished mental capacity demonstrated by

Rang does not by itself insulate him from a finding that he waived

his Miranda rights knowingly, intelligently, and voluntarily.

See, e.g., Colorado v. Connelly, 479 U.S. 157, 164 (1986); Coombs,

857 F.3d at 450; United States v. Rojas-Tapia, 446 F.3d 1, 7 (1st

Cir. 2006) ("A defendant's mental state or condition, by itself

and apart from its relationship to official coercion, is never


                                   - 9 -
dispositive of the inquiry into constitutional voluntariness.").

Rather,   a    court   views   the   totality     of    the    circumstances    --

including the defendant's mental capacity -- to decide whether the

government has proved, by a preponderance of the evidence, that

the defendant's waiver was "both 'voluntary in that [it was] the

product of a free and deliberate choice rather than intimidation,

coercion and deception' and also made with 'full awareness of both

the nature of the right being abandoned and the consequences of

the decision to abandon.'"           Sweeney, 887 F.3d at 536 (quoting

United States v. Rosario-Díaz, 202 F.3d 54, 69 (1st Cir. 2000));

see also Moran v. Burbine, 475 U.S. 412, 420 (1986).

              We find that the district court's denial in part of

Rang's suppression motion is supported by a reasonable view of the

evidence.     Rang knew his rights, even before the officers arrived.

See   generally    Rojas-Tapia,      446   F.3d    at     8    ("[W]hatever    the

deficiencies in his intellectual functioning, [the defendant's]

repeated earlier exposure to Miranda warnings made it extremely

unlikely that he failed to understand his rights at the time he

made these incriminating statements.").                The officers repeatedly

made clear that he need not speak with them.                  And Rang's cogent,

on-point explanation of the meaning of coercion belies any claim

that he could not understand that central concept.                  A review of

the interrogation transcript indicates that Rang was responsive

and followed the thread of the questioning -- even crafting lies


                                     - 10 -
when it appeared to help him -- supporting the district court's

conclusion that Rang "gave coherent answers which signaled his

understanding of the questions asked."    Rang, 2017 WL 74278, at

*7; see Coombs, 857 F.3d at 450.

          In addition to his statements during the interrogation,

Rang's actions evince an ability to comprehend complex concepts

and long-term consequences.   For example, Rang's relationship with

Minor A was cultivated throughout a series of months, during which

Rang displayed a firm understanding of his goal, careful planning,

and a nuanced use of carrots, sticks, truths, and lies in pursuit

of his desired outcomes.   The district court could reasonably view

all of this behavior as contradicting any contention that Rang was

unable to weigh the possible ramifications of engaging with the

officers. Nor does the record undermine the conclusion that Rang's

cognitive limitations did not preclude him from deciding to speak

while knowing that the government could not require him to do so.

Cf. Jackson v. McKee, 525 F.3d 430, 436-37 (6th Cir. 2008) (holding

that "there is nothing cognitively complex about the advice that

one has a right to remain silent and not to talk to the police"

(citing Finley v. Rogers, 116 F. App'x 630, 638 (6th Cir. 2004)).

          That the subsequent conversation, after Rang's waiver,

lasted more than two hours did not in any way retroactively vitiate

the waiver itself.   Indeed, in Rosario-Díaz, we held that evidence

that a defendant whose "I.Q. was in the middle 70s" and who "had


                               - 11 -
no prior involvement with the criminal justice system" waived her

Miranda      rights   even   when   the   subsequent   interrogation   lasted

longer than six hours.        202 F.3d at 69.

              Rang also argues that Connelly and Smith misled Rang

when    he    asked    the   officers     what   would   happen   after   the

interrogation.        Connelly told Rang:

       The reason why we're here and what's going to happen at
       the end of the day is I'm going to make a few phone calls
       to the U.S. Attorney's Office. If we've cleared up you
       know the matter that we're here at and they say yup, you
       know we're good, no problems, you'll be let to go, you
       know, on about your merry way.

Connelly continued:

       On the flipside, if suddenly we find you know three
       children and three kilos of cocaine in your basement,
       we're going to have a different . . . you know
       conversation. . . . [S]o the answer to your question is
       we don't know what's going to happen right now but I
       have no reason to believe that, you know, anything
       crazy's going to go on. If something does change, I'm
       going to tell you about it.

              While literally true, Connelly's response nevertheless

conveyed an impression that there was a real chance Rang would be

on his "merry way."          That impression, though, was tempered by

Connelly's subsequent statement that he did not know "what's going

to happen."       Furthermore, Connelly told Rang that he was being

interrogated as part of an ongoing federal investigation that was

nearing its end.

              Finally, and importantly, the officers never suggested

that Rang's words could not be used against him in a prosecution.


                                     - 12 -
When reading Rang his rights, Smith explained that just the

opposite was the case.      That is, Rang had the "right to remain

silent" and "[a]nything [Rang said could] be used against [him] in

court."   And Connelly stressed that "if there[] [was] a question

that [Rang didn't] like . . . [Rang could] say, Mike, I want to

skip over that. . . . I would much rather you not answer a question

than lie to me about it."

           Rang also emphasizes the fact that he told the officers

that his mind wasn't "100% working right now."          But, even taking

that statement at face value, it was apparently made in regard to

the fact that Rang had "just got[ten] up" -- reasonably interpreted

by Connelly to mean that Rang had just woken up, given that the

interrogation began at 8:41 a.m. -- not in relation to his long-

term cognitive capacity.

           Of course, one might reasonably posit that no reasonably

intelligent person would waive Miranda rights, especially when

guilty.   Hence the waiver here must not be "intelligent" in every

sense of the word.   But very many people -- including intelligent

people -- do indeed speak to investigators, even when as a matter

of self-interest they are foolish to do so.     See generally Mark A.

Godsey,   Reformulating     the    Miranda   Warnings     in   Light   of

Contemporary Law and Understandings, 90 Minn. L. Rev. 781, 792

(2006) ("[M]odern studies demonstrate that roughly eighty percent

of suspects waive their Miranda rights and talk to the police.");


                                  - 13 -
Paul G. Cassell & Bret S. Hayman, Police Interrogation in the

1990s: An Empirical Study of the Effects of Miranda, 43 UCLA L.

Rev. 839, 842 (1996) (finding that only a "fraction of suspects

(about 16%) invoke their Miranda rights"); see also Pettyjohn v.

United States, 419 F.2d 651, 654 (D.C. Cir. 1969) ("We are unable

to accept the thesis that no one can ever intelligently waive an

important    constitutional         right     voluntarily . . . .").            The

question    is    whether    Rang   possessed      the    minimum    intelligence

necessary to understand that speaking to law enforcement was

optional.   And the record clearly evidences such an understanding.

The Constitution guards against compulsion by the state, not poor

decision-making by defendants.

            Viewing     Rang's      actions       before     and     during     the

interrogation,      coupled     with    the      precautions       taken   by   the

interrogating officers, we affirm the district court's holding

that Rang knowingly, intelligently, and voluntarily waived his

Miranda rights.      See Sweeney, 887 F.3d at 536.

                                        B.

            Rang    additionally        argues     that    the      evidence    was

insufficient to convict him of attempted coercion and enticement

of a minor in violation of 18 U.S.C. § 2422(b).                We disagree.

            The    federal    statute    criminalizing       the    coercion    and

enticement of a minor, section 2422(b), provides:




                                     - 14 -
       Whoever, using the mail or any facility or means of
       interstate    or   foreign    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 fined under this title and imprisoned not less
       than 10 years or for life.

18 U.S.C. § 2422(b).         Under federal law, "attempt" crimes "train

our    attention    on   the    defendant's       'intention        to    commit    the

substantive offense'" and "require[] evidence that the defendant

in fact took a 'substantial step towards' the commission of the

offense[]."      United States v. Saldaña-Rivera, 914 F.3d 721, 725

(1st Cir. 2019) (quoting United States v. Berk, 652 F.3d 132, 140

(1st Cir. 2011)).

            Rang    argues     that   his   grooming       of    Minor A      evidenced

neither an intent to engage in sexual activity with Minor A nor a

substantial step towards engaging in such activity.                       At most, he

says "he asked to see [Minor A] masturbate, but never tried to

meet him to perform masturbation on Rang."                      Implicit in Rang's

position    is     the   argument     that       "sexual        activity"       requires

interpersonal      physical     contact,     a    question        that    has    caused

division amongst the circuits.              Compare United States v. Fugit,

703 F.3d 248, 256 (4th Cir. 2012) (interpreting "sexual activity"

as    conduct    connected     with   the    "active   pursuit           of   libidinal

gratification" on the part of an individual and therefore not

requiring physical contact), with United States v. Taylor, 640



                                      - 15 -
F.3d 255, 259-60 (7th Cir. 2011) (applying the rule of lenity to

interpret "sexual activity" as requiring physical contact).          We

find no need to join this debate, however, as the evidence shows

that Rang intended and took steps towards achieving clearly illegal

sexual contact with a minor:     He rented a hotel room near where

Minor A lived and plied Minor A's mother -- who was incarcerated

at the time -- with money and assurances to secure her permission

for a "sleep over" with Minor A; he told Minor A that Minor A

sexually aroused him and that he wanted to masturbate with Minor A;

and he asked Minor A to send him naked photographs.        Rang further

admitted to being sexually attracted to minors, having to "force

[himself] away" from thoughts of minors, and spending time with

people his age to try to avoid those feelings.       On this record,

there was ample evidence to allow a jury to conclude that the

intended   "sleep   over"    contemplated   --   indeed,    obsessively

envisioned -- interpersonal sexual contact.      And by, among other

things, reserving a hotel room and pressing Minor A's mother for

consent, Rang certainly took concrete steps towards consummating

the intended libidinous relationship.       Accordingly, we hold that

sufficient evidence supported Rang's conviction for attempted

coercion and enticement of a minor.

                                 III.

           For the foregoing reasons, we affirm Rang's conviction

under 18 U.S.C. § 2422(b).


                                - 16 -
