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                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                   No. 12-16600
                               Non-Argument Calendar
                             ________________________

                         D.C. Docket No. 9:12-cr-80124-WJZ-1



UNITED STATES OF AMERICA,

                                                           Plaintiff - Appellee,


                                       versus

GARY SCHATZ,
a.k.a. Gary K. Schatz,

                                                           Defendant - Appellant.

                             ________________________

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

                                (November 25, 2013)

Before KRAVITCH, ANDERSON and DUBINA, Circuit Judges.

PER CURIAM:
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      Gary Schatz appeals his conviction for attempting to entice a minor to

engage in sexual activity, in violation of 18 U.S.C. § 2422(b), asserting several

errors during his jury trial warrant reversal. After careful review, we affirm.

                                          I.

      At Schatz’s trial, the government called Detective Charles Ramos of the

Special Victims Unit of the Boykin Beach, Florida, Police Department. Ramos

testified that, during his investigation, he posed as a 15-year-old boy on a mobile

phone social-networking application called Boyahoy. The program allows users to

locate other users nearby, view those users’ online profiles, and send and receive

instant messages. Ramos established an account using the name “Rick,” uploading

a photograph of another officer, who was 15 years old in the photo, as Rick’s

profile picture. Boyahoy’s application restricts users to those over 18, so Ramos

entered a birthday indicating Rick was of age. In Rick’s profile, however, Ramos

entered, “I’m 18 years old minus three years. Get it? Hee-hee.”

      Ramos testified that he soon received an instant message from an individual

named Gary (later identified as Schatz). Schatz’s profile stated that he “would like

to find a nice boy to chill with.” Detective Ramos, playing the role of Rick,

exchanged messages with Schatz. In one, Schatz asked whether Rick was in

college. Rick answered that he was in high school and was planning on attending

college “[i]n a couple of years.” Soon, Schatz sent Rick his telephone number, and


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the two exchanged text messages. In three of those exchanges, Rick made

reference to being only 15 years old. Schatz asked Rick if they could meet,

suggesting they have sex. Ramos apprehended Schatz at the location where Schatz

had agreed to meet Rick.

      At trial, the government also called Richard Klein, who testified that,

beginning when he was 12, he had sexual interactions with Schatz. He testified

that his mother found out when he was 14 and called police. Initially, Klein told

police what happened but recanted his testimony days later. Klein testified that,

when he recanted, he was still under Schatz’s persuasion. He continued to see

Schatz until he was about 15 years old.

      Schatz also testified, denying he knew “Rick” was 15 years old. He said he

believed Rick to be at least 18 because he was on Boyahoy, which banned

underage users, and because he looked 18 in his photograph. Schatz said he never

looked at Rick’s profile statement about being underage and that he was distracted

when Rick told him he was 15.

      The jury ultimately found Schatz guilty, and the district court sentenced him

to 264 months’ imprisonment. This is Schatz’s appeal.

                                          II.

      Schatz first contends the district court erred by failing to state on the record

the specific reasons for admitting Klein’s testimony, which the government


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introduced under Federal Rule of Evidence 404(b), before admitting it (rather than,

as the court did, afterwards). Although Schatz objected to the introduction of

Klein’s testimony, he did not object to the timing of the court’s enunciation of its

reasons for doing so. Accordingly, we review the court’s failure to give specific

reasons for admitting the testimony beforehand only for plain error. See United

States v. Madruga, 

, 1014 (11th Cir. 1987) (“[T]o preserve

objections to admissibility of evidence, [the] objection must state specific grounds;

otherwise, review is only for plain error.”). To reverse, we must find “(1) error,

(2), that is plain, . . . (3) that affects [the defendant’s] substantial rights,” and “(4)

[that] seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Baker, 

, 1202-03 (11th Cir. 2005)

(internal quotation marks omitted).

       Schatz relies on United States v. Youts, 

, 1318 (10th Cir.

2000), in which the Tenth Circuit stated “that the court’s Rule 404(b) articulation

must occur prior to its decision whether to admit the evidence.” This is “to ensure

that the decision to admit or exclude be made only after issues and reasons are

exposed and clearly stated.” 

marks omitted). The reasoning

in Youts is persuasive, but, unfortunately for Schatz, Youts could not make the

error he identifies plain. “It is the law of this circuit that, at least where the explicit

language of a statute or rule does not specifically resolve an issue, there can be no


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plain error where there is no precedent from the Supreme Court or this Court

directly resolving it.” United States v. Lejarde-Rada, 

, 1291 (11th

Cir. 2003). As a result, we cannot reverse Schatz’s conviction on this basis.

                                          III.

      Schatz next argues the district court limited his cross-examination of Klein

in violation of his rights under the Sixth Amendment’s Confrontation Clause. We

review a district court’s limitation of cross-examination for an abuse of discretion.

United States v. Diaz, 

, 1539 (11th Cir. 1994). The district court

abuses its discretion if the jury would have had a “significantly different

impression of the witness’ credibility had counsel pursued the proposed line of

cross-examination.” 

marks omitted).

      At trial, Schatz’s counsel cross-examined Klein, attempting to establish that

Klein had a strong motive to lie, including a financial interest (a potential civil suit

against Schatz) and a retributive interest. Schatz argues the district court limited

counsel’s lines of questioning, and, as a result, he was unable to expose Klein’s

credibility problems. We do not agree. Schatz’s counsel asked Klein four times

about a potential civil suit, but Klein responded that he had not contemplated a

civil suit against Schatz and that no one in his family had pressured him to do so.

The government even asked Klein whether he was seeking civil damages against

Schatz when he finally gave a sworn statement against Schatz in 2009, and Klein


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replied that he was not. Schatz’s counsel also elicited testimony about Klein’s

potential retributive interests in testifying against Schatz. On cross-examination,

Klein admitted he eventually sought criminal charges against Schatz three years

after he originally recanted his story to police but no prosecution followed. He

admitted he wanted to testify against Schatz in this case and that his mother wanted

him to testify as well. Defense counsel clearly had the opportunity to, and did,

pursue the lines of cross-examination Schatz now says he was denied. That Klein

did not answer in the way Schatz wanted is of no moment. Schatz identifies

nothing further he could have presented that may have changed the jury’s view of

Klein’s credibility.

                                         IV.

      Schatz next asserts the district court erroneously declined to declare a

mistrial during Detective Ramos’s testimony. Ramos described his investigation

after Schatz’s arrest and told the jury he obtained a search warrant for Schatz’s

mobile phone. Counsel for the government asked “how that works,” and Ramos

responded: “As most phones do . . . this phone had a pass code lock. . . . . Since

we did not know the password for the phone and the defendant did not give it to

us[,] we enlisted the help of Google.” Schatz objected, arguing Ramos was

improperly commenting on his right to remain silent and moved for a mistrial. The




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court denied the motion but gave the following curative instruction to which

counsel did not object:

             The last answer by Officer Ramos did implicate Mr. Schatz’s
      right to remain silent. I instruct you that this was entirely improper
      under the United States Constitution where a defendant has the right
      to remain silent. The court orders that answer stricken from the
      record.
             I further instruct you to disregard the answer and you are not to
      consider the answer in deciding this case for or against the
      government or for or against Mr. Schatz.

      We review a district court’s refusal to declare a mistrial based on a comment

regarding a defendant’s right to remain silent for an abuse of discretion. United

States v. Dodd, 

, 869 (11th Cir. 1997). “A comment is deemed to be a

reference to a defendant’s silence if it was the prosecutor’s manifest intention to

refer to the defendant’s silence or if it was of such a character that the jury would

naturally and necessarily understand it to be a comment on the defendant’s

silence.” 

marks omitted). Schatz contends Ramos must

have intended to comment on Schatz’s silence. And he argues the jury necessarily

would have understood Ramos’s statement as a comment on his silence. Finally,

Schatz asserts the court’s curative instruction did more harm than good by drawing

attention to Ramos’s impermissible comment.

      We do not agree that Ramos’s one-off comment, combined with the court’s

curative instruction, demanded a mistrial. Ramos made the comment to preface his

technical discussion of how he went about extracting incriminating information
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from Schatz’s mobile phone. And there is no manifest intention to comment on a

defendant’s silence “if some other explanation for [the] remark is equally

plausible.” United States v. Swindall, 

, 1551-52 (11th Cir. 1992)

(internal quotation marks omitted). There is also no indication the jury necessarily

would have understood the statement to be a comment on Schatz’s silence. Ramos

did not say Schatz refused to give his password, and he did not discuss Schatz’s

failure to do so at length. This is especially so in light of the court’s curative

instruction, which Schatz cannot show was plainly erroneous. 1 See 

(“Where the district court gives a curative instruction, the district

court’s refusal to declare a mistrial will not be overturned unless the evidence is so

highly prejudicial as to be incurable.”). The court struck Ramos’s entire answer

from the record and asked the jury not to consider it at all in deciding Schatz’s

guilt or innocence. “We presume that juries follow the instructions given to them.”

United States v. Townsend, 

, 1013-14 (11th Cir. 2011). The district

court accordingly did not abuse its discretion in declining to declare a mistrial.

                                                 V.

       Next, Schatz asserts the government’s misconduct during closing argument

resulted in prejudice warranting a new trial. He contends the government

1
   The government contends Schatz invited any error in the court’s curative instruction by
affirmatively stating he did not object to it. We are doubtful the doctrine of invited error applies.
In any event, because we conclude Schatz’s contentions fail even if we choose to review them
for plain error, we decline to conclude the error was invited.
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improperly shifted the burden of proof, alluded to evidence not in the record, and

made an unfounded personal attack. We review de novo claims of prosecutorial

misconduct. United States v. Eckhardt, 

, 947 (11th Cir. 2006). “To

establish prosecutorial misconduct, (1) the remarks must be improper, and (2) the

remarks must prejudicially affect the substantial rights of the defendant.” 

marks omitted). “When the record contains sufficient

independent evidence of guilt, any error is harmless.” 

the government’s comments at closing argument were

improper, we conclude any error was harmless because there was sufficient

independent evidence of Schatz’s guilt. A defendant is guilty of attempted

enticement if he, using any means of interstate commerce, knowingly attempts to

entice a minor to engage in any sexual activity. 18 U.S.C. § 2422(b). Detective

Ramos testified that Schatz, using his mobile phone (a means of interstate

commerce), initiated contact with Ramos’s alias, Rick. Schatz asked Rick to meet

him, said they could have sex, and coordinated the details of the meeting.

      Schatz’s defense was that he did not do any of this knowing Rick was a

minor, but the government presented overwhelming evidence of intent as well.

Schatz continued talking to Rick even when Rick said three times that he was only

15 years old. In one exchange, Rick said, “being 15 I have not done much,” and

asked whether that was alright. Schatz responded: “For sure.” Klein’s testimony


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corroborated Schatz’s intent to pursue a minor. Further, the jury was entitled to

disbelieve Schatz’s testimony that he did not know Rick was a minor and consider

Schatz’s denial as substantive evidence of his guilt. See United States v. Kendrick,

, 985 (11th Cir. 2012). Because overwhelming independent evidence

supported each element of a § 2422(b) conviction, any error during closing

argument was harmless.

                                           VI.

      Finally, Schatz argues the errors detailed above cumulatively denied him the

right to a fair trial. “The cumulative error doctrine provides that an aggregation of

non-reversible errors (i.e., plain errors failing to necessitate reversal and harmless

errors) can yield a denial of the constitutional right to a fair trial, which calls for

reversal.” United States v. Baker, 

, 1223 (11th Cir. 2005) (internal

quotation marks omitted). “The harmlessness of cumulative error is determined by

conducting the same inquiry as for individual error – courts look to see whether the

defendant’s substantial rights were affected.” 

marks

omitted). Schatz cannot prevail on his claim that cumulative error deprived him of

a fair trial. As we detailed above, the evidence of his guilt was overwhelming.

                                           VII.

      For the foregoing reasons, Schatz’s conviction is

      AFFIRMED.


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