FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 23, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 04-13726

Non-Argument Calendar

________________________

D.C. Docket No. 03-00588-CR-1-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

STEPHEN EDMUND BOLEN, JR.,

Defendant-Appellant.

__________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(June 23, 2005)

Before ANDERSON, BIRCH and BARKETT, Circuit Judges.

PER CURIAM:

Stephen Edmund Bolen, Jr. appeals his conviction and 110-month sentence

for using a facility and means of interstate commerce for enticement to commit
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child molestation, in violation of 18 U.S.C. § 2422(b). Bolen and the government

stipulated to certain facts: (1) Special Agent Nikki Badolato of the Federal

Bureau of Investigation (“FBI”) used a computer connected to the Internet in an

undercover capacity, posing as a 25-year-old single mother named “Paulina” with

a 3-year-old daughter named “Rachel,” (2) Special Agent Badolato was in an

internet chat room titled “sex with younger” when Bolen contacted her via instant

message, (3) Bolen and Special Agent Badolato engaged in an internet chat that

took place over a number of days, (4) Bolen and Special Agent Badolato

communicated by telephone and finalized their plans to meet, and (5) Bolen had

contact only with an undercover officer posing as an adult and no contact with a

minor or with an undercover officer posing as a minor. The government and

Bolen entered into a written plea agreement, in which Bolen conceded in the

agreement that he was guilty of the crime charged in the indictment and waived

his right to appeal his sentence and the right to collaterally attack his sentence in

any post-conviction proceeding on any ground, except that Bolen reserved the

right to appeal any upward departure and the adverse determinations of his

motions to suppress evidence and dismiss the indictment. 

On appeal, Bolen’s primary argument is that § 2422(b) does not prohibit an

individual from arranging to have sex with a minor through communications with
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an adult intermediary, as opposed to direct communications with a minor. Bolen

also argues that § 2422(b) does not prohibit an individual from arranging to have

sex with a fictitious minor. Bolen argues that if the statute is interpreted as

prohibiting such activities it is unconstitutionally vague. 

The interpretation of § 2422(b) is a question of law subject to de novo

review. See United States v. Murrell, 368 F.3d 1283, 1285 (11th Cir. 2004). 

Section 2422(b) provides in relevant part as follows:

Whoever, using . . . any facility or means of interstate . . . commerce, . . .

knowingly persuades, induces, entices, or coerces any individual who has

not attained the age of 18 years, to engage in . . . any sexual activity for

which any person can be charged with a criminal offense, or attempts to do

so, shall be . . . imprisoned not less than 5 years and not more than 30 years.

18 U.S.C. 2422(b).

We have recently held that “direct communication with a minor or supposed

minor is unnecessary under the text of § 2422(b).” Murrell, 368 F.3d at 1288

(11th Cir. 2004) (affirming a conviction under § 2422(b) where the defendant used

the internet to communicate with an undercover agent posing as an adult

intermediary who would arrange for the defendant to engage in various unlawful

sexual activities with a minor). We held that § 2422(b) encompasses conduct

where a defendant arranges to have sex with a minor through communications

with an adult intermediary, including an adult law enforcement agent posing as a
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parent of a minor child. Id. at 1286; see also United States v. Hornaday, 392 F.3d

1306, 1310 (11th Cir. 2004) (stating that, in Murrell, we held that the use of an

adult intermediary, such as an adult law enforcement agent posing as a parent of a

minor child, does not take a defendant’s actions outside the prohibitions of

§ 2422(b)). In Murrell, we reasoned that, in such a situation, by negotiating with

the purported parent of a minor, the defendant attempts “to stimulate or cause the

minor to engage in sexual activity with him,” thereby bringing the defendant’s

conduct within the definition of “induce.” Id. at 1287. We have also recently held

that any argument that § 2422(b) is “void for vagueness insofar as adult

intermediary situations are concerned cannot be reconciled with Murrell’s holding

that the plain language of § 2422(b) clearly applies to those situations.” 

Hornaday, 392 F.3d at 1310.

Here, Bolen’s arguments, that § 2422(b) does not prohibit an individual

from arranging to have sex with a minor through communications with an adult

intermediary or from arranging to have sex with a fictitious minor, are without

merit. This argument has been explicitly rejected in cases that were factually

indistinguishable. See Murrell, 368 F.3d at 1286; Hornaday, 392 F.3d at 1310. 

Further, we have held that § 2422, as so interpreted, is not unconstitutionally

vague. See Hornaday, 392 F.3d at 1310. 
5

Bolen next argues on appeal that the district court erred in dismissing his

motion to suppress evidence because the police officers did not have probable

cause to arrest him and conduct a warrantless search incident to arrest. Bolen

bases this argument on the fact that the government and Bolen stipulated that

Bolen had no contact with a minor or with an undercover officer posing as a

minor, contending that, as such, he could not exercise undue influence over a

minor within the plain meaning of § 2422(b). 

“This court reviews a district court’s denial of a defendant’s motion to

suppress under a mixed standard of review, reviewing the district court’s findings

of fact under the clearly erroneous standard and the district court’s application of

law to those facts de novo.” United States v. Desir, 257 F.3d 1233, 1235-36 (11th

Cir. 2001). 

“Under the Fourth and Fourteenth Amendments, an arresting officer may,

without a warrant, search a person validly arrested.” Michigan v. DeFillippo, 443

U.S. 31, 35, 99 S.Ct. 2627, 2631 (1979). “[T]he Constitution permits an officer to

arrest a suspect without a warrant if there is probable cause to believe that the

suspect has committed or is committing an offense.” Id. at 36, 99 S.Ct. at 2631. 

“‘A law enforcement officer has probable cause to arrest a suspect if the facts and

circumstances within the officer’s knowledge, of which he or she has reasonably
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trustworthy information, would cause a prudent person to believe, under the

circumstances shown, that the suspect has committed, is committing, or is about to

commit an offense.’” Williamson v. Mills, 65 F.3d 155, 158 (11th Cir. 1995)

(quoting Von Stein v. Brescher, 904 F.2d 572, 578 (11th Cir. 1990)).

Section 2422(b) prohibits, in relevant part, individuals from using any

facility of interstate commerce from attempting to induce any minor child to

engage in any sexual activity for which any person can be charged with a criminal

offense. 18 U.S.C. 2422(b). As discussed above, we have held that § 2422(b)

encompasses conduct where a defendant arranges to have sex with a minor

through communications with an adult intermediary, including an adult law

enforcement agent posing as a parent of a minor child. The crime of attempt

requires (1) that the defendant had the specific intent to engage in the criminal

conduct for which he is charged and (2) that he took a substantial step toward

commission of the offense. Id.

Here, the agents had probable cause to arrest Bolen because they had

information that would cause a prudent person to believe that Bolen had attempted

to induce a minor child to engage in sexual activity for which any person can be

charged with a criminal offense. Specifically, the agents had information that

Bolen had specific intent to induce a minor to engage in unlawful sexual activity
 For example, Bolen advised “Paulina,” (1) via instant message, to bring her daughter with 1

her to their meeting because he wanted to meet them both and he “[t]hought [Paulina] wanted to

show her [his] cock” and, (2) over the phone, that at the planned meeting he wanted to go as far with

“Rachel” as “Paulina” was willing to let him go, specifically stating that he wanted “Rachel” to

perform oral sex on him.

7

in the form of instant message and phone communications in which he negotiated

with the purported mother of a minor for the minor to engage in sexual activity

with him. See Murrell, 368 F.3d at 1287. The fact that these negotiations 1

involved the purported mother of the minor and not the minor herself is if no legal

significance under § 2422(b). See id. at 1286. The agents also had information

that Bolen took a substantial step toward the commission of the offense, in that he

arranged meeting with the purported mother and the minor and arrived at the

meeting site at the planned time. Because the agents had probable cause to arrest

Bolen, the district court did not err in denying Bolen’s motion to suppress

evidence. 

Next, Bolen argues that the district court erred in denying Bolen’s motion to

dismiss the indictment as he never communicated with a minor or an undercover

officer posing as a minor.

Whether an indictment sufficiently alleges a statutorily proscribed offense is

a question of law that we review de novo. United States v. Steele, 178 F.3d 1230,

1233 (11th Cir. 1999). An indictment is sufficient if it (1) presents the essential
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elements of the charged offense, (2) notifies the accused of the charges to be

defended against, and (3) enables the accused to rely upon a judgment under the

indictment as a bar against double jeopardy for any subsequent prosecution for the

same offense. Id. at 1233-34. This rule “puts the defendant on notice of ‘the

nature and cause of the accusation as required by the Sixth Amendment of the

Constitution . . . [and] it fulfills the Fifth Amendment’s indictment requirement,

ensuring that a grand jury only return an indictment when it finds probable cause

to support all the necessary elements of the crime.” United States v. Fern, 155

F.3d 1318, 1325 (citation omitted).

Here the indictment, that charged Bolen, tracked the language of the statute. 

Specifically, it charged him with “using a facility and means of interstate

commerce, that is a computer connected to the Internet, attempted knowingly to

persuade, induce, entice, and coerce an individual who had not attained the age of

18 years to engage in prohibited sexual conduct, that is child molestation . . ., in

violation of Title 18, United States Code, Section 2422(b).” Comparing the

indictment to the charged statute of violation, it is clear that the indictment

sufficiently alleged each element of the offense, that is, (1) using a facility of

interstate commerce, (2) in an attempt, (3) to knowingly induce an individual who

had not attained the age of 18 years, (4) to engage in illegal sexual activity. See
9

18 U.S.C. § 2422(b). Because the indictment sufficiently alleged each element of

the offense, it (1) provided adequate notice of the charge, (2) enabled Bolen to rely

upon the judgment under the indictment as a bar against double jeopardy, and (3)

ensured that the grand jury found probable cause to support all the necessary

elements. See Steele, 178 F.3d at 1233-34; Fern, 155 F.3d at 1325. Further, as

discussed above, any finding of probable cause does not constitute legal error

here. Accordingly, the district court did not err in denying Bolen’s motion to

dismiss the indictment for insufficiency.

Last, Bolen argues that, in the event the Supreme Court rules in United

States v. Booker, 543 U.S. ___, 125 S.Ct. 738 (2005), that the Federal Sentencing

Guidelines, or enhancements thereunder, are unconstitutional, this case should be

remanded to the district court for resentencing in accordance with the ruling. 

However, Bolen signed an appeal waiver that barred appeal of his sentence unless

the district court departed upward.

We uphold appeal waivers as valid if they are knowingly and voluntarily

entered. United States v. Buchanan, 131 F.3d 1005, 1008 (11th Cir. 1997) (citing

United States v. Bushert, 997 F.2d 1343, 1350 (11th Cir.1993)); see also United

States v. Benitez-Zapata, 131 F.3d 1444, 1446 (11th Cir.1997) (“Waiver will be

enforced if the government demonstrates either: (1) the district court specifically
10

questioned the defendant about the waiver during the plea colloquy, or (2) the

record clearly shows that the defendant otherwise understood the full significance

of the waiver.”). Recently, we explained that “the right to appeal a sentence based

on Apprendi/ Booker grounds can be waived in a plea agreement. Broad waiver

language covers those grounds of appeal.” United States v. Rubbo, 396 F.3d

1330, 1335 (11th Cir. 2005) (dismissing the appeal because the broad appeal

waiver provision precluded defendant from raising sentencing issues arising under

Apprendi/Booker line of cases on appeal, and rejecting the argument that those

issues fell within an exception to the appeal waiver in the written plea agreement

for sentences above “statutory maximum” because the parties intended that term to

have its ordinary meaning, namely, a sentence above the maximum in the United

States Code, not the term-of-art definition developed in the Apprendi/Blakely line

of cases); see also United States v. Grinard-Henry, 399 F.3d 1294, 1296-97 (11th

Cir. 2005) (denying the motion to reconsider dismissal of the appeal because the

appeal waiver was knowing and voluntary, the general appeal waiver language

broad enough to include an Apprendi/Blakely/Booker claim, and the claim did not

fall within an exception to an appeal waiver for “a sentence in violation of the law

apart from the sentencing guidelines”). 
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Here, the broad appeal waiver provision in the plea agreement encompasses

the sole sentencing issue arising under the Apprendi/Blakely/Booker line of cases. 

See Rubbo, 396 F.3d at 1335. The only exceptions to the appeal waiver provision

that were provided in the plea agreement relate to Bolen’s right to appeal an

upward departure from the applicable guideline range and the adverse

determinations of his motion to suppress evidence and his motion to dismiss the

indictment. Bolen’s Booker argument, then, does not satisfy any of the specified

exceptions to the waiver. Moreover, because Bolen (1) has not argued in his

appellate brief that the waiver was not valid because it was not knowing and

voluntary, (2) failed to have his plea colloquy transcribed for a court determination

of whether the waiver was knowing and voluntary, and (3) failed to file a reply

brief in response to the government’s contention that his Booker argument was

waived by the terms of his plea agreement, we conclude that the waiver must be

upheld. See Loren v. Sasser, 309 F.3d 1296, 1304 (11th Cir. 2002) (holding, in

the context of a civil proceeding, that we must affirm the district court when an

appellant fails to provide all the evidence that the district court had before it when

making contested rulings, relying on Fed.R.App.P. 10(b)(2), which provides that if

an appellant intends to urge on appeal that a conclusion is unsupported by the

evidence, the appellant must include in the record a transcript of all evidence
12

relevant to that conclusion). Thus, Bolen has waived his right to appeal his

sentence under Booker. As such, we dismiss Bolen’s sentence appeal.

AFFIRMED in part and DISMISSED in part.