                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            MAY 30, 2007
                             No. 06-15750                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                D. C. Docket No. 05-00171-CR-01-BBM-1

UNITED STATES OF AMERICA,


                                                   Plaintiff-Appellee,

                                  versus

MARK A. GROSSMAN,

                                                   Defendant-Appellant.


                       ________________________

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

                              (May 30, 2007)

Before DUBINA, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
      Appellant Mark Grossman (“Grossman”) appeals his convictions for

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

and crossing state lines with the intent to engage in sexual activity with a person

under 12 years of age, in violation of 18 U.S.C. § 2241(c). The evidence presented

at pre-trial hearings and at Grossman’s trial demonstrate the following. As part of

his job, a special agent with the Federal Bureau of Investigation (“FBI”) entered an

internet chat room called “preteen, baby, and toddler sex” and assumed the identity

of a 31-year-old woman with a 9-year-old daughter. In the chat room, Grossman

initiated a one-on-one conversation with the agent and expressed an interest in

engaging in sexual activity with the 9-year-old daughter. After several more

conversations, Grossman indicated that he would drive from his home in Florida to

meet the woman and her daughter in a certain restaurant parking lot in Buford,

Georgia. Grossman indicated that he would bring lubricant, among other items. On

the day of the planned meeting, agents waited for Grossman at the restaurant

parking lot. Upon his arrival, the agents arrested Grossman. The agents also staged

the arrest of a female FBI agent posing as the 31-year-old woman. Likewise, an

agent loudly stated near Grossman that the 9-year-old had been placed in protective

custody.

      After his arrest, Grossman was transported to FBI headquarters in Atlanta



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and interviewed by two agents. At the interview, the agents informed Grossman

that they were investigating crimes of sexual exploitation of children. An agent

then read Grossman a list of his rights that included a waiver provision. Grossman

indicated that he understood these rights and did not have any questions concerning

them and then initialed each enumerated right and signed the waiver provision.

During the interview, the agents did not use any physical force or make any

promises to get him to sign the waiver form. Grossman answered some questions,

but eventually asked for an attorney. At that point, the interrogation ceased. The

agents never informed Grossman that the 31-year-old woman and 9-year-old child

did not exist. The entire interview lasted 20 minutes. During it, Grossman

appeared to be thinking clearly and logically.

      Also after his arrest, an agent drove Grossman’s car to the FBI headquarters,

where the agents searched the car. The agents did not have a search warrant. The

FBI, however, had a policy of impounding an arrestee’s car and making an

inventory of the items contained therein to protect the arrestee’s personal property

and to protect itself from claims of theft. Inside Grossman’s car, the agents found

lubricant, Viagra, and a laptop computer, among other items.

      Grossman’s defense at his trial was that he never intended to engage in sexual

activity with the 9-year-old girl, but only intended to have sex with the 31-year-old



                                           3
woman. Accordingly, the government presented the testimony of another minor

whose mother previously dated and lived with Grossman. This minor testified that

she had awoken one night and found Grossman sitting next to her bed. Grossman

removed her underwear and then touched and licked her vagina. Before admitting

this testimony, the district court considered its prejudicial effect and ruled that is

probative value to the trial outweighed any chance of undue prejudice. Likewise,

after this testimony, the district court instructed the jury only to consider this

evidence as it related to Grossman’s intent to commit the offense with which he was

charged. At the close of the trial, the district court repeated this limiting instruction.

      On appeal, Grossman argues that (1) his statements made during a post-arrest

interrogation should have been suppressed, as they were not made voluntarily; (2)

items seized from his car should have been suppressed; and (3) the testimony of

another minor that Grossman previously had molested her should have been

suppressed, as its prejudicial effect greatly outweighed its probative value.

                                 Post-arrest Statements

      The voluntariness of a confession is a question of law that we review de

novo. United States v. Barbour, 70 F.3d 580, 584 (11th Cir. 1995). In Miranda v.

Arizona, 384 U.S. 436, 444-445, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694 (1966), the

Supreme Court held that prior to any custodial interrogation, a person “must be



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warned that he has a right to remain silent, that any statement he does make may be

used as evidence against him, and that he has a right to the presence of an attorney,

either retained or appointed.” If the person indicates at any point that he wishes to

consult with an attorney before speaking, the interrogation must cease. The person,

however, may waive his rights, “provided the waiver is made voluntarily,

knowingly and intelligently.” Id. at 444, 86 S. Ct. at 1612. The Supreme Court

later explained that the waiver is effective if the totality of the circumstances

demonstrate that (1) it was voluntary “in the sense that it was the product of a free

and deliberate choice rather than intimidation, coercion, or deception,” and (2) it

was made “with a full awareness of both the nature of the right being abandoned

and the consequences of the decision to abandon it.” Moran v. Burbine, 475 U.S.

412, 421, 106 S. Ct. 1135, 1141, 89 L. Ed. 2d 410 (1986).

      In determining whether post-arrest statements were voluntary, we look to the

“totality of the circumstances” and consider factors including whether the defendant

was subjected to “an exhaustingly long interrogation,” whether the interrogators

applied physical force to the defendant or threatened to do so, and whether the

interrogators made promises to induce the defendant’s statements. United States v.

Thompson, 422 F.3d 1285, 1295-96 (11th Cir. 2005), cert. denied, 127 S. Ct. 748

(2006). Likewise, we consider the person’s knowledge of the “substance of the



                                            5
charge” against him. West v. United States, 399 F.2d 467, 469 (5th Cir. 1968)

(determining the voluntariness of a juvenile’s confession). Furthermore, in

analyzing whether deception by the police undermined the voluntary nature of a

statement, we have held that “the police’s use of a trick alone will not render a

confession involuntary.” United States v. Castaneda-Castaneda, 729 F.2d 1360,

1363 (11th Cir. 1984).

      Here, the record demonstrates that Grossman’s waiver of his right to silence

and counsel was knowing, voluntary, and intelligent, such that his post-arrest

statements were admissible. See Miranda, 384 U.S. at 444-445, 86 S. Ct. at 1612.

Before questioning Grossman, the FBI agent read him a list of rights. Grossman

initialed each of these rights and signed a waiver form. The totality of the evidence

suggests that this waiver was the product of free will rather than coercion. See

Burbine, 475 U.S. at 421, 106 S. Ct. at 1141; Thompson, 422 F.3d at 1295 -1296.

Grossman only was interviewed for 20 minutes, the FBI agents who interrogated

him did not use physical force or make any promises, and Grossman was informed

of the general substance of the charge against him. See West, 399 F.2d at 469;

Thompson, 422 F.3d at 1295-96. The agents’ use of the ruse that a real mother and

daughter were involved, that the mother was arrested, and that the daughter was

placed in protective custody does not diminish the non-coercive nature of the



                                           6
interview. See Castaneda-Castaneda, 729 F.2d at 1363.

      Likewise, the totality of the evidence in the record suggests that the waiver

was not the product of a lack of comprehension. See Burbine, 475 U.S. at 421, 106

S. Ct. at 1141; Thompson, 422 F.3d at 1295-96. Rather, Grossman indicated that he

understood his rights and had no questions about these rights and appeared to be

thinking clearly and logically. Accordingly, because Grossman waived his rights

and the totality of the circumstances demonstrates that his waiver was knowing,

voluntary, and intelligent, we hold that his post-arrest statements were voluntary.

See Burbine, 475 U.S. at 421, 106 S. Ct. at 1141; Thompson, 422 F.3d at 1295-96;

Barbour, 70 F.3d at 584.

                      Search of Car and Seizure of Items in Car

      “A district court’s denial of a motion to suppress presents a mixed question

of law and fact.” United States v. Behety, 32 F.3d 503, 510 (11th Cir. 1994). We

review the district court’s factual findings for clear error and the district court’s

application of law to the facts de novo. Id. In conducting this review, we construe

the facts in a light most favorable to the successful party. Id.

      The Supreme Court has held that searches and seizures conducted absent a

search warrant granted by a judicial officer are per se unreasonable under the

Fourth Amendment unless they fall within a limited set of well-defined exceptions.



                                            7
Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576

(1967). One of these exceptions allows the police to conduct a warrantless search

where they have probable cause and there exists exigent circumstances. United

States v. Burgos, 720 F.2d 1520, 1525 (11th Cir. 1983). The purpose of this

exception is to prevent a real danger that evidence might be lost. United States v.

Bulman, 667 F.2d 1374, 1384 (11th Cir. 1982). Probable cause to support such a

warrantless search exists where the facts would “lead a reasonably cautious person

to believe that the search will uncover evidence of a crime.” Burgos, 720 F.2d at

1525 (quotation omitted). The exigent circumstances to support such a warrantless

search stem from “the ability of a vehicle to become mobile.” United States v.

Nixon, 918 F.2d 895, 903 (11th Cir. 1990) (citation omitted).

      Another of these exceptions covers inventory searches. Illinois v. Lafayette,

462 U.S. 640, 643, 103 S. Ct. 2605, 2608, 77 L. Ed. 2d 65 (1983). In Sammons v.

Taylor, 967 F.2d 1533 (11th Cir. 1992), this court defined the parameters of this

exception as follows:

      Even if an arrestee’s vehicle is not impeding traffic or otherwise
      presenting a hazard, a law enforcement officer may impound the
      vehicle, so long as the decision to impound is made on the basis of
      standard criteria and on the basis of “something other than suspicion of
      evidence of criminal activity.” If the vehicle has been lawfully
      impounded, the law enforcement officer may conduct an inventory
      search, including a search of closed containers, provided the search is
      conducted pursuant to standardized criteria.


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Id. at 1543. We had held that “if an inventory search is otherwise reasonable, its

validity is not vitiated by a police officer’s suspicion that contraband or other

evidence may be found” inside the car. United States v. Staller, 616 F.2d 1284,

1290 (5th Cir. 1980) (citation omitted). There are three interests that justify this

exception, namely (1) protection of the owner’s property that might be in the car,

(2) protection of the police from false claims of lost possessions, and (3) protection

of the police from potential danger. Id. at 1289.

      The record demonstrates that the search of Grossman’s car fell within two

exceptions to the warrant requirement. First, the agents had probable cause to

believe that incriminating evidence might be found in Grossman’s car, as he had

indicated that he would bring lubricant to his meeting with the woman and her

daughter, and the car was mobile. See Burgos, 720 F.2d at 1525; Nixon, 918 F.2d at

903. Thus, the items seized from Grossman’s car were admissible under the exigent

circumstances exception. See id. Second, the impoundment and search of

Grossman’s car was conducted pursuant to the FBI’s policy of making an inventory

of an arrestee’s personal property. See Sammons, 967 F.2d at 1543. The fact that

the agents may have expected to find incriminating evidence in his car does not

affect the validity of this search. See Staller, 616 F.2d at 1290. Thus, the items

seized from Grossman’s car also were admissible under the inventory search



                                            9
exception. See Sammons, 967 F.2d at 1543.

                          Witness’s Testimony of Prior Bad Act

       Rule 404(b) of the Federal Rules of Evidence permits the admission of other

crimes, wrongs, or acts as evidence to show, inter alia, motive, preparation,

knowledge, and/or intent, but such evidence is not admissible to show the

“character of a person” or his “action in conformity therewith.” Fed.R.Evid.

404(b); See United States v. Cross, 928 F.2d 1030, 1047-48 n.65 (11th Cir. 1991).

For such “other crimes evidence” to be admissible, (1) it must be relevant to an

issue other than the defendant’s character, (2) the defendant’s commission of the

prior act must be established by sufficient proof, and (3) the probative value of the

evidence must outweigh its prejudicial effect and meet the other requirements of

Fed.R.Evid. 403.1 United States v. Dickerson, 248 F.3d 1036, 1046-1047 (11th

Cir. 2001). To establish the relevance prong of this test where intent is at issue, the

district court must determine “that the extrinsic offense requires the same intent as

the charged offense.” Id. at 1047 (internal quotation and citation omitted). To

establish the proof prong of this test, “the uncorroborated word of an accomplice” is

sufficient. Id. (citation omitted). Finally, to satisfy the Rule 403 prong of this test,


       1
          Rule 403 provides that: “Although 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.” Fed. R. Evid. 403.

                                                10
the district court may consider the necessity of the evidence to the government’s

case. Id. Moreover, the district court’s “careful limiting instructions” can reduce

the potential prejudice of evidence, such that it is admissible. United States v.

Palmer, 809 F.2d 1504, 1505-1506 (11th Cir. 1987). The district court’s admission

of other crimes evidence under Rule 404(b) will not be reversed absent an abuse of

discretion. See Cross, 928 F.2d at 1047.

      We conclude from the record that the district court did not abuse its

discretion in admitting the minor’s testimony. See Cross, 928 F.2d at 1047. Her

testimony that Grossman had sexually molested her was relevant to the issue of

Grossman’s intent to engage in sexual activity with the 9-year-old child. The

earlier offense of child molestation and the offenses charged, namely attempting to

entice a child to engage in an act that would constitute child molestation and

crossing state lines to molest a child, involved the same intent and general purpose,

specifically engaging in unlawful sexual acts with a minor. See Dickerson, 248

F.3d at 1046-1047. Also, her testimony alone constituted sufficient proof of the

defendant’s commission of the earlier act of child molestation. See id. Finally, the

probative value of the testimony outweighed its prejudicial effect, in that Grossman

himself put his intent at issue by stating that he did not intend to have sex with the

9-year-old, thereby making the minor’s testimony necessary to the government’s



                                           11
case. Moreover, the district court gave two limiting instructions regarding this

evidence. See Dickerson, 248 F.3d at 1046-1047; Palmer, 809 F.2d at 1505-1506.

The record demonstrates that the district court conducted the required Rule 403

balancing test before admitting the evidence and, therefore, we affirm the district

court’s ruling. See Dickerson, 248 F.3d at 1046-1047.

                                     Conclusion

      For the above-stated reasons, we affirm Grossman’s convictions.

      AFFIRMED.




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