Filed: Nov. 25, 2013
Latest Update: Mar. 02, 2020
Summary: Case: 12-16600 Date Filed: 11/25/2013 Page: 1 of 10 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-16600 Non-Argument Calendar _ D.C. Docket No. 9:12-cr-80124-WJZ-1 UNITED STATES OF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: Case:
Summary: Case: 12-16600 Date Filed: 11/25/2013 Page: 1 of 10 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-16600 Non-Argument Calendar _ D.C. Docket No. 9:12-cr-80124-WJZ-1 UNITED STATES OF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: Case: ..
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Case: 12-16600 Date Filed: 11/25/2013 Page: 1 of 10
[DO NOT PUBLISH]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, 810 F.2d 1010, 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,
432 F.3d 1189, 1202-03 (11th Cir. 2005)
(internal quotation marks omitted).
Schatz relies on United States v. Youts, 229 F.3d 1312, 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.”
Id. (internal quotation 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, 319 F.3d 1288, 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, 26 F.3d 1533, 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.”
Id. (internal quotation 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, 111 F.3d 867, 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.”
Id. (internal quotation 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, 971 F.2d 1531, 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
Dodd, 111
F.3d at 870 (“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,
630 F.3d 1003, 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, 466 F.3d 938, 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.”
Id.
(internal quotation marks omitted). “When the record contains sufficient
independent evidence of guilt, any error is harmless.”
Id.
Even assuming 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,
682 F.3d 974, 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, 432 F.3d 1189, 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.”
Id. (internal quotation 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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