United States v. Peter Robert Bobal

981 F.3d 971

• Court: Court of Appeals for the Eleventh Circuit
• Decided: November 30, 2020
• Docket: 19-10678
• Status: Published

Opinion

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-10678 ________________________

D.C. Docket No. 0:18-CR-60072-BB-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PETER ROBERT BOBAL,

Defendant-Appellant.

________________________

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

(November 30, 2020)

Before WILLIAM PRYOR, Chief Judge, HULL and MARCUS, Circuit Judges.

WILLIAM PRYOR, Chief Judge:

This appeal requires us to decide whether a district court plainly erred by

denying a criminal defendant’s motion for a new trial and by imposing a restriction USCA11 Case: 19-10678 Date Filed: 11/30/2020 Page: 2 of 13

on using a computer as a special condition of a lifetime term of supervised release.

After a bifurcated trial, a jury convicted Peter Bobal of attempting to persuade a

minor to engage in sexual activity and committing a felony involving a minor

while required to register as a sex offender. Bobal’s sentence included a lifetime

term of supervised release, during which he could not use a computer except for

work and with the permission of the district court. Bobal argues that the prosecutor

misled the jury in her closing argument and that his computer restriction is

unconstitutional in the light of Packingham v. North Carolina, 137 S. Ct. 1730

(2017). We conclude that the prosecutor’s closing argument was not improper. We

also conclude that Packingham is distinguishable because Bobal’s computer

restriction does not extend beyond his term of supervised release, it is tailored to

his offense, and he can obtain the district court’s approval to use a computer for

permissible reasons. We affirm.

I. BACKGROUND

In October 2017, a 62-year-old woman living with her 18-year-old daughter

in Hallandale Beach, Florida, found a note on her door. The note said something

like “I think you’re beautiful,” although it was unclear whether the note was

addressed to the woman or her daughter. It included a phone number but no name.

The woman suspected that her neighbor, Peter Bobal, had left it. She asked her

friend, a 60-year-old man, to call the number. He did, and he reached Bobal’s

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voicemail. The friend hung up without leaving a message, but a short time later he

began receiving text messages from Bobal. Bobal wrote that he was a single male,

and he asked the caller to text him back. The friend did not respond.

After continuing to ignore Bobal for a couple months, the friend decided to

reply and to pose as a 14-year-old girl to see how Bobal would react. Bobal

responded by asking if the girl’s mother was single, and he said that he could talk

with either the girl or her mother about anything. He continued texting the

fictitious girl, and he eventually asked her to send him a picture. The man posing

as the girl offered the excuse that he was at school, but he asked Bobal for a

picture. Bobal responded by asking if he should send one of his face or of him

naked. The man never answered, so Bobal sent a picture of his face. But after the

man commented that Bobal had sent a picture of his face “instead of the other,”

Bobal sent the fictitious girl a picture of his penis. The man posing as the girl then

contacted the Federal Bureau of Investigation and turned over copies of his text

messages with Bobal.

A special agent of the Bureau assumed the identity of the fictitious 14-year-

old girl. He exchanged numerous text messages with Bobal, many of which were

sexual in nature. Eventually, Bobal and the special agent arranged to meet. When

Bobal arrived at the agreed-upon meeting place, the special agent arrested him.

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A federal grand jury indicted Bobal on two counts: using a facility and

means of interstate commerce to knowingly attempt to persuade, induce, entice,

and coerce a minor to engage in sexual activity, 18 U.S.C. § 2422(b), and

committing a felony offense involving a minor after being required to register as a

sex offender, id. § 2260A. Bobal had previously been convicted in Florida for

using a computer to solicit a child to engage in sexual activity. At trial, Bobal

stipulated to the second element of the second count: at the time of the alleged

criminal misconduct, he was a registered sex offender.

The district court held a two-day, bifurcated jury trial. It did not inform the

jury about the charge under section 2260A until after the jury convicted Bobal of

the charge under section 2422(b). In the trial for the latter charge, neither the

government nor Bobal called any witnesses or offered any evidence other than

Bobal’s stipulation.

The prosecutor gave a short closing argument in which she explained the

two elements of section 2260A: first, the defendant committed a felony offense

involving a minor, and second, the defendant was required to register as a sex

offender at the time of the offense. She explained that Bobal’s stipulation about

being a registered sex offender satisfied the second element: “So the Defense is

telling you: ‘We stipulate that the Government proves Count 2. I was a registered

sex offender. I was required to register as a sex offender.’” And the prosecutor then

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asserted that the guilty verdict for section 2422(b) satisfied the first element of

section 2260A. She concluded, “So the only verdict as to Count 2 is a verdict of

guilty.”

Bobal did not object to the prosecutor’s statements, and he waived his own

closing argument. The jury then convicted him of violating section 2260A.

Later that day, after the trial ended, Bobal moved the district court for a new

trial on the second count. He argued that the prosecutor had misstated the law

when she said that “the only verdict as to Count 2 is a verdict of guilty” because

the jury was free to reevaluate the evidence as to the first count. The district court

denied the motion.

The district court sentenced Bobal to 240 months of imprisonment followed

by a lifetime term of supervised release. As a special condition of supervised

release, it ordered that Bobal “shall not possess or use a computer that contains an

internal, external or wireless modem without the prior approval of the Court.” And

it further ordered that Bobal “shall not possess or use any computer; except that

[he] may, with the prior approval of the Court, use a computer in connection with

authorized employment.” Bobal did not object to these special conditions.

II. STANDARD OF REVIEW

We review unpreserved issues for plain error. United States v. Moran, 573

F.3d 1132, 1137 (11th Cir. 2009); United States v. Pendergraft, 297 F.3d 1198,

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1211 (11th Cir. 2002). We may reverse only if the error is plain, it affects

substantial rights, and it “seriously affects the fairness, integrity, or public

reputation of the judicial proceeding.” Pendergraft, 297 F.3d at 1211. An error

cannot be “plain” if “neither the Supreme Court nor this Court has ever resolved

[the] issue, and other circuits are split on it.” United States v. Aguillard, 217 F.3d

1319, 1321 (11th Cir. 2000).

III. DISCUSSION

Bobal argues that the district court erred by denying his motion for a new

trial and asks that we reverse his conviction for violating section 2260A. He also

contends that the computer restriction is unconstitutional in the light of

Packingham. Because Bobal did not contemporaneously object either to the

prosecutor’s closing argument or to his sentence, we review his arguments for

plain error, and we reject them both.

A. The District Court Correctly Denied Bobal’s Motion for a New Trial. Bobal argues that the district court should have granted his motion for a new

trial for the charge under section 2260A because the prosecutor made two

misstatements during her closing argument. First, the prosecutor said that Bobal

stipulated to the second count instead of just one element of that count. Second,

she told the jury that “the only verdict as to Count 2 is a verdict of guilty” when the

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jury was actually free to reevaluate the evidence for the first count and to reach an

inconsistent verdict.

The prosecutor’s closing argument will constitute misconduct only if it was

improper and prejudiced the substantial rights of the defendant. United States v.

Taohim, 817 F.3d 1215, 1224 (11th Cir. 2013). We assess the prejudicial effect of

arguments by “evaluat[ing] them in the context of the trial as a whole and

assess[ing] their probable impact on the jury. To warrant a new trial, there must be

a reasonable probability that but for the remarks, the outcome would be different.”

Id. (internal quotation marks and citation omitted). We conclude that the district

court did not err in denying Bobal’s motion for a new trial because the prosecutor’s

statements were not improper and did not prejudicially affect Bobal’s substantial

rights.

In explaining Bobal’s stipulation to the jury, the prosecutor, paraphrasing

Bobal, said, “We stipulate that the Government proves Count 2,” and on appeal,

the government concedes that this statement was an “isolated slip of the tongue.”

But, during the trial, the prosecutor immediately followed that “slip” with, “I was a

registered sex offender. I was required to register as a sex offender.” From the full

context of the quote, a reasonable juror would have understood the prosecutor to

contend that Bobal had stipulated to only one element of section 2260A—that he

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was required to register as a sex offender at the time of the offense—not the entire

count.

The prosecutor’s statement that “the only verdict as to Count 2 is a verdict of

guilty” was clearly an argument meant to persuade the jury, not an instruction as to

how it must vote. We allow lawyers to make “colorful and perhaps flamboyant

remarks if they relate to the evidence adduced at trial,” United States v. Bailey, 123

F.3d 1381, 1400 (11th Cir. 1997) (internal quotation marks omitted), and the

prosecutor’s remarks conveyed nothing more than elementary logic. Bobal’s

stipulation that he was a registered sex offender satisfied one of the two elements

of section 2260A. His conviction for violating section 2422(b)—delivered earlier

that day by the exact same jury—satisfied the other. Because Bobal satisfied both

elements, he was necessarily guilty of violating section 2260A. To be sure, the jury

could have rendered an inconsistent verdict. But “[w]hile we recognize that a jury

may render a verdict at odds with the evidence or the law, neither the court nor

counsel should encourage jurors to violate their oath.” United States v. Trujillo,

714 F.2d 102, 106 (11th Cir. 1983).

Neither of the prosecutor’s statements was improper. But even if they were

improper, “statements and arguments of counsel are not evidence, [and] improper

statements can be rectified by the district court’s instruction to the jury that only

the evidence in the case be considered.” United States v. Smith, 918 F.2d 1551,

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1562 (11th Cir. 1990). Here, the district court twice instructed the jury that the

lawyers’ statements were not evidence. So even if there were something wrong

with the prosecutor’s closing argument, the district court cured the problem, and

the prosecutor’s statements do not warrant a new trial. We affirm Bobal’s

conviction for violating section 2260A.

B. A Restriction on Computer Usage as a Special Condition of a Lifetime Term of Supervised Release Is Not Plainly Unconstitutional. Bobal next challenges the special condition of his supervised release that

prohibits him from using a computer except for work and with the prior permission

of the district court. He contends that this restriction is unconstitutional. But our

precedents foreclose his argument.

A district court does not commit plain error by imposing a computer

restriction as a special condition of supervised release, even if the term of

supervised release is life. We held in United States v. Zinn that a limited restriction

on a sex offender’s ability to use the internet while on a three-year period of

supervised release was “a necessary and reasonable condition of supervised

release” that did not burden the offender’s rights under the First Amendment. 321

F.3d 1084, 1086, 1093 (11th Cir. 2003). Such restrictions are reasonably related to

legitimate sentencing considerations, namely “the need to protect both the public

and sex offenders themselves from . . . potential abuses” of the internet. Id. at

1093. And computer restrictions are not overly broad when a sex offender on

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supervised release can “still use the Internet for valid purposes by obtaining his

probation officer’s prior permission.” Id. Later, in United States v. Carpenter, we

held that a district court did not plainly err by imposing a computer restriction as a

special condition of supervised release for a period of life. 803 F.3d 1224, 1239–40

(11th Cir. 2015).

Bobal contends that Carpenter does not help us to resolve this appeal, but

we disagree. To be sure, the issue we addressed in Carpenter was whether a

computer restriction as a special condition of a lifetime period of supervised

release was unreasonable, not whether it violated the First Amendment. Id. at

1228. We also reached our conclusion in Carpenter in part because, even if there

was any error in the length of the restriction, Carpenter invited it by asking the

district court to sentence him to a lifetime period of supervised release. Id. at 1239.

But we also stated that because “no case of the Supreme Court or this Court says

that a condition like this one cannot be imposed . . . there can be no plain error.” Id.

Bobal argues that the Supreme Court abrogated our precedents in

Packingham v. North Carolina, when it held that a North Carolina law prohibiting

registered sex offenders from accessing social networking websites that permitted

children to be present violated the First Amendment, 137 S. Ct. at 1733, 1738, but

Packingham is distinguishable for at least three reasons. First, the state law in

Packingham restricted sex offenders even after they had completed their sentences.

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Id. at 1737. Bobal’s computer restriction, by contrast, is a special condition of his

supervised release and does not extend beyond his sentence. Second, the state law

in Packingham applied to all registered sex offenders, not only those who had used

a computer or some other means of electronic communication to commit their

offenses. 137 S. Ct. at 1733. The Supreme Court explained that it was not holding

that the First Amendment bars the enactment of “more specific laws than the one at

issue.” Id. at 1737. Indeed, the Court “assumed that the First Amendment permits a

State to enact specific, narrowly tailored laws that prohibit a sex offender from

engaging in conduct that often presages a sexual crime, like contacting a minor or

using a website to gather information about a minor.” Id. Bobal used an electronic

device to attempt to persuade a minor with whom he had never communicated in

person to have sex with him. His computer restriction prevents him from engaging

in activity that could result in his repeating that offense. Third, unlike the state law

in Packingham, Bobal’s computer restriction is not a “complete bar to the exercise

of [his] First Amendment rights.” Id. at 1738. Instead, it allows Bobal to obtain

court permission to use a computer in connection with employment. And Bobal

can also ask the district court to modify the terms of his supervised release for

other reasons. See 18 U.S.C. § 3583(e)(2); Fed. R. Crim. P. 32.1(c). The computer

restriction does not leave Bobal without recourse to protect his First Amendment

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Bobal urges us to adopt a more sweeping interpretation of Packingham. He

cites a parenthetical sentence from the opinion, where the Supreme Court said, “Of

importance, the troubling fact that the law imposes severe restrictions on persons

who already have served their sentence and are no longer subject to the supervision

of the criminal justice system is also not an issue before the Court.” Packingham,

137 S. Ct. at 1737. Bobal understands this language to mean that the holding of

Packingham applies to all computer restrictions, regardless of whether the

defendant is on supervised release or has completed his sentence.

We disagree. The sentence in question clarified that the Supreme Court

decided only whether the North Carolina law violated the First Amendment, not

whether the law was unconstitutional for other reasons not raised in the appeal.

Nothing in Packingham undermines the settled principle that a district court may

“impose reasonable conditions that deprive the offender of some freedoms enjoyed

by law-abiding citizens” during supervised release. United States v. Knights, 534

U.S. 112, 119 (2001). Several of our sister circuits have likewise decided that, even

after Packingham, a district court does not commit plain error by imposing a

restriction on computer usage as a special condition of supervised release. See

United States v. Perrin, 926 F.3d 1044, 1049–50 (8th Cir. 2019); United States v.

Halverson, 897 F.3d 645, 658 (5th Cir. 2018); United States v. Rock, 863 F.3d 827,

831 (D.C. Cir. 2017).

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Bobal urges us to follow the Third Circuit, which reached the opposite

conclusion in United States v. Holena under an abuse-of-discretion standard. 906

F.3d 288, 290, 295 (3d Cir. 2018). The Third Circuit stated that, “[u]nder

Packingham, blanket internet restrictions will rarely be tailored enough to pass

constitutional muster.” Id. at 295. And it concluded that “even under Packingham’s

narrower concurrence,” a blanket computer restriction fails because it “precludes

access to a large number of websites that are most unlikely to facilitate the

commission of a sex crime against a child.” Id. (internal quotation marks omitted).

Holena read the opinions in Packingham too broadly. Both the majority

opinion and the concurring opinion in Packingham agreed that the North Carolina

law infringed the First Amendment rights of registered sex offenders, who would

be committing an entirely new felony if they accessed certain websites. But neither

opinion addressed whether the First Amendment is violated by a special condition

of supervised release for a sex offender who is serving a sentence for an offense

involving electronic communications sent to a minor.

IV. CONCLUSION

We AFFIRM Bobal’s conviction and sentence.