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                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-15831
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 0:16-cr-60094-BB-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

ADRIAN GALVIN RUIZ,

                                                         Defendant-Appellant.

                      ________________________

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

                             (July 13, 2017)

Before MARTIN, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:
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      After a jury trial, Adrian Galvin Ruiz was convicted of knowingly

attempting to persuade, induce, entice, or coerce a minor to engage in unlawful

sexual activity, in violation of 18 U.S.C. § 2422(b). On appeal, Ruiz argues that

the district court abused its discretion in admitting evidence, pursuant to Federal

Rule of Evidence 404(b), of prior communications with an undercover detective,

regarding a potential sexual encounter with a minor. Because the district court did

not abuse its discretion in admitting the evidence, we affirm.

                                         I.

      Ruiz became the subject of an undercover law-enforcement operation after

he contacted a law-enforcement agent who was posing as “Remy” on Tribe, a

social-networking website that caters to men. “Remy,” according to the profile

created by Dan Cannon, a special agent with the Florida Department of Law

Enforcement and a member of the FBI’s Internet Crimes Against Children

taskforce, was a dad whose his interests included being a “boy lover.”

      Ruiz contacted “Remy” (Cannon) by email on March 22, 2016. In his email,

Ruiz stated that he found Cannon’s profile on Tribe and “love[d] the same thing

you do” and “would love to come play with you and discuss.” Over the next week,

Cannon and Ruiz, who identified himself as “Adam,” continued to communicate

via email. Cannon represented to Ruiz that he was the father of a 13-year-old son

named “Donnie” and that he was interested in watching his son participate in


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sexual activities with adults. They discussed where they were from, the fact that

Ruiz was interested in a real-life encounter versus fantasy, and the kind of sexual

experiences that Ruiz wanted.

      Cannon and Ruiz ultimately established rules regarding a potential sexual

encounter between Ruiz and the fictitious Donnie. Cannon instructed Ruiz to bring

condoms, lubricant, and a “cool T-shirt” for Donnie. By March 30, 2016, just over

one week after their initial contact, Cannon and Ruiz agreed to meet on March 31

at the La Quinta Inn in Sunrise, Florida.        Cannon made a reservation and

forwarded a copy to Ruiz.

      In the days leading up to that encounter, Cannon had sent Ruiz a picture of

Donnie, which was actually a “regressed photograph of a current law enforcement

officer.” Ruiz and Donnie (still Cannon) also started communicating directly.

Through email, Cannon and Donnie discussed the fictitious child’s sexual

experiences and interests.

      At around 6:30 p.m. on the day of the agreed meeting, Cannon observed an

individual, whom he identified as Ruiz, crouched down in a vehicle in the parking

lot of the hotel. Cannon told the other law-enforcement officer to get in place.

Meanwhile, Ruiz and Cannon continued to communicate by email. Eventually,

Ruiz informed Cannon that he had arrived at the hotel, and Cannon walked out to

meet him. Carrying a messenger bag, Ruiz approached Cannon, and the two men


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confirmed their fictitious identities. After confirming that Ruiz remembered the

rules, Cannon gave Ruiz “a big hug.” Cannon told Ruiz that Donnie was upstairs,

and they walked into the hotel lobby towards a stairwell. Cannon then signaled to

the other officers, who approached and apprehended Ruiz. Ruiz stated, “I’m not

here. I’m not here.” Inside Ruiz’s messenger bag officers found five condoms, a

bottle of lubricant, and a superhero T-shirt.

       Following his arrest, a federal grand jury issued a one-count indictment

charging Ruiz with knowingly attempting to entice a minor to engage in unlawful

sex. See 18 U.S.C. § 2422(b). Ruiz pled not guilty.

       At trial, the government introduced, in addition to the above evidence of

Ruiz’s charged conduct, evidence of a prior instance where Ruiz had engaged in

similar conduct. The district court admitted the evidence under Rule 404(b), Fed.

R. Evid. According to Detective Nick Masters 1, Ruiz had posted an advertisement

on Craigslist entitled, “Kinky Dads or Bros for Taboo, M4M,” in November 2015

and updated it the following month. Masters responded to the ad in January 2016,

stating that he was “a taboo dad also into young.” Thereafter, Masters and Ruiz

exchanged a series of emails about their sexual interests. Masters, posing as the

father of a 7-year-old son and an 11-year-old daughter, stated that he was “not into


       1
         Masters was a Broward County Sheriff’s Deputy assigned to the Internet Crimes
Against Children and Human Trafficking Task Force and a full-time task-force officer with the
Federal Bureau of Investigation Violent Crimes Against Children Unit.
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fantasy or sex email” and “not looking to play with adults.” Ruiz indicated that he

was looking for the same thing, detailed the sexual activity he planned to engage in

with Masters’s son, and sought to set up a meeting. Ultimately, however, Ruiz

stopped responding to Masters, and no meeting occurred.

      Ruiz testified in his own defense and broadly confirmed Cannon’s testimony

about his conduct. He explained that he had arrived at the hotel believing that he

was about to engage in sexual activity but ultimately decided not to go through

with it. As he walked with Cannon towards the stairwell in the hotel, he said, “I

can’t do this.” Cannon then grabbed his arm and told him, “It’s better if you don’t

run.” Ruiz further testified that he had been sexually molested repeatedly as a

child and did not want to “traumatize someone and have them carry it for their

entire life, like I’ve had to do.” Ruiz admitted that he had posted the Craigslist ad

and communicated with Masters. He indicated that when he was communicating

with Masters, “it was still fantasy,” but with Cannon, he became eager to meet

Donnie “because the lines between fantasy and reality did become blurred.”

      The jury found Ruiz guilty of attempted enticement. The district court

sentenced him to the mandatory minimum of 120 months of imprisonment. Ruiz

now appeals.




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                                         II.

      On appeal, Ruiz argues that the district court abused its discretion in

allowing the introduction of the communications with Masters. In Ruiz’s view, the

communications were not relevant to any issue other than his propensity and

character, and in any case, “demonstrated only talk.” Ruiz also contends that the

danger of unfair prejudice resulting from introduction of the evidence substantially

outweighed any possible probative value.

      We review the admission of evidence of a defendant’s prior bad acts under

Rule 404(b), Fed. R. Evid. United States v. Ellisor, 522 F.3d 1255, 1267 (11th Cir.

2008).   A court abuses its discretion when its decision “rests upon a clearly

erroneous finding of fact, an errant conclusion of law, or an improper application

of law to fact.” United States v. Baker, 432 F.3d 1189, 1202 (11th Cir. 2005).

      Rule 404(b) prohibits the admission of evidence of prior bad acts “to prove a

person’s character in order to show that on a particular occasion the person acted in

accordance with the character.” Fed. R. Evid. 404(b)(1). Such evidence, however,

“may be admissible for another purpose, such as proving motive, opportunity,

intent, preparation, plan, knowledge, identity, absence of mistake, or lack of

accident.” Fed. R. Evid. 404(b)(2). We have explained that “Rule 404(b) is one of

inclusion which allows extrinsic evidence unless it tends to prove only criminal




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propensity.” United States v. Sanders, 668 F.3d 1298, 1314 (11th Cir. 2012)

(internal quotation marks omitted).

      We apply a three-part test to determine the admissibility of Rule 404(b)

evidence. United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007). First,

the evidence must be relevant to an issue other than the defendant’s character. Id.

Second, sufficient proof must exist for a jury to find that the defendant committed

the act or acts in question. Id. And third, “the probative value of the evidence

cannot be substantially outweighed by undue prejudice, and the evidence must

satisfy Rule 403.” Id. The second prong is not at issue because Ruiz does not

dispute having engaged in the communications with Masters.

      Here, the district court did not abuse its discretion in admitting the evidence

of the prior communications with Masters as relevant to Ruiz’s intent. By pleading

not guilty and then specifically contesting whether he had the intent necessary to

commit the offense, Ruiz made his intent a material issue in the case. See United

States v. Zapata, 139 F.3d 1355, 1358 (11th Cir. 1998) (stating that when a

defendant pleads not guilty, intent becomes a material issue, absent affirmative

steps by the defendant to remove the issue of intent). That is, the government was

required to prove that Ruiz “acted with a specific intent to persuade, induce, entice,

or coerce a minor to engage in unlawful sex.” United States v. Murrell, 368 F.3d

1283, 1286 (11th Cir. 2004); see 18 U.S.C. § 2422(b).


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      Here, the evidence of the prior communications with Masters was probative

of Ruiz’s intent to entice a minor. For extrinsic evidence to be admissible as

relevant to intent, the government needs to show that the extrinsic conduct shared

the same state of mind as the charged offense. See Edouard, 485 F.3d at 1345.

The prior communications meet that test for at least two reasons.       First, the

communications demonstrated that Ruiz had a sexual interest in children, which is

a component of the intent underlying the charged conduct. Evidence indicating

that Ruiz was sexually interested in young boys makes it more likely that he

intended to persuade or entice a 13-year-old boy to engage in sexual activity with

him. See Fed. R. Evid. 401.

      Second, the prior communications reflect an intent to set up a sexual

encounter with a young boy, which is the same intent at issue in the charged

offense. Just a few months before the charged conduct, Ruiz communicated with

an undercover officer who was pretending to the father of a young boy. In those

communications, Ruiz affirmed his interest in having a sexual encounter with the

young son, communicated about what specific sexual activities he was interested in

doing with the young boy, and sought to set up a time and a place for meeting.

The fact that no meeting in fact occurred does make the evidence irrelevant. The

prior communications still make it more likely that Ruiz’s interest in

communicating with “Donnie” extended beyond mere fantasy or just talk and that


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he intended to follow through with his enticement of a minor to commit an

unlawful sexual act.      Accordingly, the first prong was satisfied because the

evidence was relevant to Ruiz’s intent.

      Turning to the third prong of our third-part test, the district court did not

abuse its discretion in concluding that the probative value of the prior

communications was not substantially outweighed by the danger of unfair

prejudice.   See Edouard, 485 F.3d at 1344.         When conducting the balancing

analysis under Rule 403 for extrinsic evidence, courts should conduct 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.” United States v. Calderon, 127

F.3d 1314, 1332 (11th Cir. 1997) (internal quotation marks omitted); see United

States v. Jernigan, 341 F.3d 1273, 1282 (11th Cir. 2003). All three factors favor

admissibility.

      For the reasons explained above, the evidence was important to the

government case, particularly to rebut Ruiz’s contention that he did not intend to

follow through with the sexual activity he discussed with “Donnie.” Moreover,

given the substantial similarity of the prior communications to the communications

underlying the charged conduct, the evidence was highly probative of his intent to

entice a minor to commit sexual acts. In addition, the short timespan between the


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extrinsic conduct and charged offense—less than three months—further indicates

the probative value of the communications.

      As for the danger of unfair prejudice, we have affirmed the admission under

Rule 403(b) of evidence substantially more prejudicial than the communications at

issue here. See, e.g., United States v. Woods, 684 F.3d 1045, 1064–65 (11th Cir.

2012) (affirming admission of defendant’s statement “about molesting his niece”).

Additionally, any danger of unfair prejudice was minimized by the district court’s

instruction that the jury consider evidence of Ruiz’s similar conduct “for very

limited purposes” only, including to determine his state of mind. See United States

v. Brown, 665 F.3d 1239, 1245, 1247 (11th Cir. 2011) (“[T]he district court gave a

limiting instruction to the jury, which cured any possible unfair prejudice posed by

the 404(b) evidence.”) (alteration adopted) (internal quotation marks omitted).

      In sum, the district court did not abuse its discretion by admitting Ruiz’s

prior communications under Rule 404(b).

      AFFIRMED.




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