2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-19-2012

USA v. Robert Pawlowski

Precedential or Non-Precedential: Precedential

Docket No. 10-4105

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1

 PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

No. 10-4105

 

UNITED STATES OF AMERICA

 v.

ROBERT PAWLOWSKI,

 Appellant.

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D. C. No. 2-09-cr-00209-001)

District Judge: Honorable Donetta W. Ambrose

Argued on October 25, 2011

Before: FISHER, VANASKIE and ROTH, Circuit Judges

(Opinion filed: June 19, 2012)
2

Lisa B. Freeland, Esquire

Federal Public Defender

Karen Sirianni Gerlach, Esquire (Argued)

Assistant Federal Public Defender

1500 Liberty Center

1001 Liberty Avenue

Pittsburgh, PA 15222

Counsel for Appellant

David J. Hickton, Esquire

United States Attorney

Kelly R. Labby, Esquire

Assistant United States Attorney

Rebecca R. Haywood, Esquire

Laura S. Irwin, Esquire

Michael I. Ivory, Esquire (Argued)

Office of the United States Attorney

700 Grant Street, Suite 4000

Pittsburgh, PA 15219

Counsel for Appellee
3

O P I N I O N 

ROTH, Circuit Judge:

Robert Pawlowski appeals both his conviction of one 

count of attempted enticement of a minor, in violation of 18 

U.S.C. § 2422(b), and the sentence imposed by the District 

Court. Pawlowski raises three arguments: (1) the 

government‟s remark that defense counsel would “certainly 

present evidence” violated his Fifth Amendment rights, (2) 

the evidence at trial was insufficient to prove that he believed 

he was communicating with a minor, and (3) the District 

Court miscalculated his Sentencing Guidelines range because 

masturbation does not constitute “sexual contact” for the 

purpose of the two-level enhancement pursuant to U.S.S.G. § 

2G1.3(b)(4)(A). For the reasons that follow, we will affirm 

the judgments of conviction and of sentence of the District 

Court.

I. BACKGROUND

A. The Crime

In the spring of 2009, Detective Lynn Havelka of the 

Allegheny County District Attorney‟s Office was involved in 

an online undercover investigation into crimes against 

children. As part of the investigation, Detective Havelka 

created an online profile under the name “Ashley Anthony” 

on myYearbook, a social networking website. Detective 

Havelka posed as a 15-year-old girl. Because certain features 
4

of myYearbook, such as chatting, were restricted to 

individuals 18 years of age or older, Detective Havelka listed 

“Ashley‟s” age as 98. Detective Havelka chose 98 because 

no one would believe that a 98-year-old used myYearbook 

and “it would give an opportunity to an individual to ask me 

how old I am.” 

Pawlowski first contacted “Ashley” on April 27, 2009, 

with a “friend” request via myYearbook. After “Ashley” 

accepted, Pawlowski inquired: “I know you are not 98. How 

old are you, if I may be so forward in asking?” “Ashley” 

responded that she was 15 years old and in high school. 

Pawlowski then asked: “Why did you put 98 on your 

profile?” “Ashley” explained that she wanted to be able to 

chat with her friends on myYearbook. 

Frequent communications between Pawlowski and 

“Ashley” soon followed via myYearbook, Yahoo Instant 

Messenger, and Yahoo email. The communications were 

recorded by Detective Havelka. Pawlowski quickly raised 

sexual topics and continued to do so throughout the month 

and a half that he contacted “Ashley.” Detective Havelka,

with the aid of a voice changer device to sound like a younger 

girl, also spoke as “Ashley” with Pawlowski via cellular 

telephone. 

After their first phone conversation on May 15, 2009, 

Pawlowski expressed his desire to meet “Ashley” in person. 

During an online conversation on May 24, 2009, Pawlowski 

masturbated in front of “Ashley” on his webcam. A few days 

later, Pawlowski and “Ashley” discussed arrangements to 

meet in person, including whether he should buy condoms. 

The morning of May 28, 2009, “Ashley” called Pawlowski to 
5

confirm their plan to meet at 9:30 a.m. at the Waterfront in 

Homestead, Pennsylvania. When Pawlowski appeared at the 

specified time and place, he was arrested. A search warrant 

was obtained and executed on his residence later that day. 

On June 24, 2009, a one-count Indictment was 

returned, charging Pawlowski with attempted enticement of a 

minor, in violation of 18 U.S.C. § 2422(b).1Pawlowski pled 

not guilty and proceeded to a jury trial. 

B. The Trial

During the three-day jury trial, the government called 

two witnesses: Detective Havelka and FBI Special Agent 

Ignace Ertilus. The defense did not call any witnesses. 

Pawlowski was found guilty. 

 

1

Section 2422(b) provides:

Whoever, using the mail or any 

facility or means of interstate or 

foreign commerce, or within the 

special maritime and territorial 

jurisdiction of the United States 

knowingly persuades, induces, 

entices, or coerces any individual 

who has not attained the age of 18 

years, to engage in prostitution or 

any sexual activity for which any 

person can be charged with a 

criminal offense, or attempts to do 

so, shall be fined under this title and 

imprisoned not less than 10 years or 

for life.
6

1. The Government’s Remark

Following empanelment, the District Court gave the 

jury preliminary instructions which explained, inter alia, the 

burden of proof, the presumption of innocence, and the 

purpose of opening statements, including that “opening 

statements are not evidence.” In particular, the District Court 

stated: 

After the government has presented 

all the evidence it intends to present, 

the defendant‟s attorney may make 

an opening statement if he has not 

already done so. Then he may or 

may not present evidence on behalf 

of the defendant. And the reason 

that I say he may or may not is 

because the defendant is not required 

to present any evidence. I remind 

you he is presumed innocent and it is 

the government‟s burden and the 

government‟s duty alone to prove the 

guilt of the defendant, and that proof 

must be beyond a reasonable doubt. 

A defendant, this defendant, does not 

have to prove that he is innocent. 

During the government‟s opening, the prosecutor 

stated to the jury: 

Mr. Pawlowski is absolutely entitled 

to a fair trial, and he will have a fair 

trial. Please remember that the 

burden of proof is on the 

prosecution, as it should be, in a 

criminal case. And [defense 
7

counsel] Mr. DeRiso will certainly 

present evidence and explain

things and bring up, make good 

points that will help you understand 

the evidence better. 

(emphasis added). No objection was made to this or to any 

part of the government‟s opening statement. Instead, at the 

end of defendant‟s opening statement, defense counsel 

remarked: 

Now, Mr. Prosecutor Haller, excuse 

me, Assistant United States 

Attorney, indicated that I am going 

to put evidence on, and I am sure

that was a misstatement. I have no 

duty to put any evidence on. Trust 

me, there will be some zealous crossexamination, however, and I am 

going to submit to you all of the 

evidence is right here. It is the chats. 

It is the phone conversations. What 

other evidence is there? The 

government wants you to look at the 

evidence and believe this. Defense 

wants you to look at the evidence 

and believe this. It is that simple. 
8

The defendant did not object to the government‟s opening 

statement, request a curative instruction from the District 

Court, or move for a mistrial. 

At the close of the evidence, the District Court gave 

final instructions to the jury, which explained that Pawlowski 

had a constitutional right not to testify and reiterated, in part:

The burden of proof is always on the 

government and it must prove guilt 

beyond a reasonable doubt. This 

burden never shifts to a defendant 

because the law never imposes upon 

a defendant in a criminal case the 

burden of calling any witnesses or 

producing any evidence. 

2. The Age of the “Victim”

At trial, the recorded communications between 

Pawlowski and “Ashley” were entered into evidence and 

extensive portions were read aloud, including discussions of 

“Ashley‟s” age and appearance in photographs. 

In their first conversation, on April 27, 2009, 

Pawlowski asked “Ashley” directly about her age and learned 

that she was 15 years old. Later in the same conversation, 

Pawlowski told “Ashley” not to tell anyone that they chatted 

because “I could get in trouble, you know, under-age.” When 

“Ashley” said she worked in order to earn money to buy 

clothes, Pawlowski responded: “[h]igh school girls don‟t need 

clothes.” Throughout the month that they corresponded, 

Pawlowski made numerous remarks indicating he believed 
9

“Ashley” to be 15 years old. He asked when she would be 

turning 16 years old and commented: “Dam[n], I wish you 

was three years older. Laugh out loud. Then you would be 

legal.” He repeatedly called her “young lady” and warned her 

not to drink or do drugs. He referred to their “age gap” and 

“age diff” and described himself as an “old dude” and 

“older.” When “Ashley” wondered whether her age bothered 

him, Pawlowski responded no, saying: “You think if we was 

to meet that I would look at you as a 15 immature, young 

lady, or something, you know, age issue?” “Ashley” also 

reinforced her age by repeating it, such as “I‟m 15. 

Remember,” and by referring to age-related events, such as 

going to high school and learning to drive. 

In addition, Pawlowski repeatedly expressed concern 

that he could get into trouble because of “Ashley‟s” age. He 

told “Ashley” he preferred that she not tell anyone about their 

contact so that “we don‟t run into any probs.” He later 

explained: 

Pawlowski: The reason I seem to be 

dancing around subjects from the 

whatevers and have you confused is 

that this is the internet and there are 

sting operations for older guys 

hitting, trying to pick up younger 

females, and I was just being careful. 

I just don‟t want any trouble with

anyone. You know what I mean? 

There, it‟s all out now.

“Ashley”: I know what you mean.

Pawlowski: I know I am a lot older. 
10

Just don‟t want you to think, think 

me as a perve. I am not by far. I just 

want you to know that. 

Photographs of “Ashley” from her my Yearbook profile 

were also introduced into evidence. The photographs actually 

depicted a female police officer at ages 13, 15, and 16. After 

seeing the photographs, Pawlowski expressed his desire to meet 

“Ashley” in person and asked her to send him more pictures. 

C. The Sentencing

Pawlowski faced a mandatory minimum of ten years 

imprisonment, pursuant to 18 U.S.C. § 2422(b). The 

Probation Office determined that Pawlowski had a total 

offense level of 32 and a criminal history category of I, 

resulting in an advisory Sentencing Guidelines range of 121 

to 150 months. That calculation included a two-level 

enhancement for “sexual contact” pursuant to U.S.S.G. §

2G1.3(b)(4)(A) because of Pawlowski‟s masturbation via 

webcam transmitted to “Ashley.” The term “sexual contact,” 

as defined in 18 U.S.C. § 2246(3) and incorporated into 

U.S.S.G. § 2G1.3, means: 

the intentional touching, either directly or through the 

clothing, of the genitalia . . . of any person with an 

intent to abuse, humiliate, harass, degrade, or arouse or 

gratify the sexual desire of any person.
11

Pawlowski objected to that enhancement, contending 

that touching oneself does not constitute the touching “of any 

person.” 

At the sentencing hearing on September 30, 2010, the

District Court rejected Pawlowski‟s objection, finding that 

“the Defendant touching his penis, masturbating while 

interacting with who he believed was a 15-year-old girl, 

qualifies as sexual contact as defined in the statute.” The 

District Court, therefore, applied the two-level enhancement 

pursuant to U.S.S.G. § 2G1.3(b)(4)(A) and sentenced 

Pawlowski to 121 months‟ imprisonment, to be followed by 

25 years of supervised release. 

Pawlowski appealed. 

II. DISCUSSION

A. The Government’s Remark

Pawlowski argues that the government‟s opening 

remark that defense counsel “will certainly present evidence” 

constitutes an indirect prosecutorial comment on his failure to 

testify, in violation of his Fifth Amendment rights. Because 

Pawlowski did not preserve the issue, we review for plain 

error. United States v. Balter, 91 F.3d 427, 441 (3d Cir. 

1996). A plain error is “clear” or “obvious” and “affects 

substantial rights,” meaning it was “prejudicial in that it 

affected the outcome of the District Court proceedings.” 

United States v. Wolfe, 245 F.3d 257, 261 (3d Cir. 2001). 

The defendant must demonstrate “that the prosecutor‟s 

remarks were improper, that they denied him a fair trial, and 

that the outcome of the proceedings would have been 
12

different absent the improper statements.” United States v. 

DeSilva, 505 F.3d 711, 717-18 (7th Cir. 2007). 

 

The Fifth Amendment “forbids either comment by the 

prosecution on the accused‟s silence or instruction by the 

court that such silence is evidence of guilt.” Griffin v. 

California, 380 U.S. 609, 615 (1965). A prosecutor‟s

comment constitutes reversible error only if it “was of such 

character that the jury would naturally and necessarily take it 

to be a comment on the failure of the accused to testify.” 

Lesko v. Lehman, 925 F.2d 1527, 1544 (3d Cir. 1991). In 

making that determination, the challenged remark is 

examined in its trial context. Id. 

Taken in its trial context, the government‟s brief and 

isolated remark does not amount to plain error. The District

Court repeatedly explained to the jury that the government 

bore the burden of proof and that Pawlowski had an absolute 

constitutional right not to testify or present evidence. 

Defense counsel directly responded to the government‟s 

remark in his own opening statement, correcting any potential 

misimpression the jury might have had. Moreover, the 

evidence of Pawlowski‟s guilt was overwhelming, and the 

outcome of the proceeding was unlikely to have been 

different absent the remark. Any error, therefore, was not 

plain. 

B. The Age of the “Victim”

Pawlowski contends that the evidence at trial was 

insufficient to prove that he believed he was communicating 

with a minor, as required for a conviction under 18 U.S.C. § 

2422(b). Because Pawlowski did not preserve the issue, we 
13

review for plain error. United States v. Mornan, 413 F.3d 

372, 381 (3d Cir. 2005). We “view the evidence in the light 

most favorable to the government and must sustain a jury‟s 

verdict if a reasonable jury believing the government‟s 

evidence could find beyond a reasonable doubt that the 

government proved all the elements of the offenses.” Id. at 

381-82 (internal quotations omitted). The defendant‟s burden 

is “extremely high.” United States v. Riley, 621 F.3d 312, 

329 (3d Cir. 2010). 

Because Pawlowski targeted an adult decoy, rather 

than an actual minor, he was charged with attempt, which 

focuses “on the subjective intent of the defendant, not the 

actual age of the victim.” See United States v. Tykarsky, 446 

F.3d 458, 466-69 (3d Cir. 2006) (holding lack of an actual 

minor is not a defense to charge of attempted enticement). To 

prove attempt, the government must show the defendant 

intended to commit a crime and took a substantial step toward 

doing so. Id. at 469. Accordingly, one of the elements the 

government must prove (and the only one that Pawlowski 

disputes on appeal) is that Pawlowski subjectively believed 

that “Ashley” was under the age of 18. 

Pawlowski argues that there was insufficient evidence 

for the jury to find that he believed “Ashley” was a minor 

because “as far as he knew, and subjectively believed, the 15-

year old age could have been false, just as easily as the 98-

year old age could have been.” We reject Pawlowski‟s 

argument because ample evidence was introduced at trial 

from which a reasonable jury could find beyond a reasonable 

doubt that Pawlowski subjectively believed he was 

communicating with a 15-year-old. 
14

C. “Sexual Contact” 

Pawlowski contends on appeal, as he did at sentencing, 

that the two-level enhancement for “sexual contact” pursuant 

to U.S.S.G. § 2G1.3(b)(4)(A) was improperly applied because 

the touching of oneself is not the touching “of any person.” 

We review de novo the District Court‟s interpretation of 

statutory requirements, United States v. Williams, 344 F.3d 

365, 377 (3d Cir. 2003), and legal conclusions regarding the 

Sentencing Guidelines. United States v. Blackmon, 557 F.3d 

113, 118 (3d Cir. 2009). 

We turn first to the language of the Sentencing 

Guidelines and of the underlying statute. United States v. 

Swan, 275 F.3d 272, 279 (3d Cir. 2002). Where the language 

is plain and unambiguous, “the sole function of the court is to 

enforce it according to its terms.” United States v. Sherman, 

150 F.3d 306, 313 (3d Cir. 1998). The words “must be read 

in their context and with a view to their place in the overall 

statutory scheme.” Swan, 275 F.3d at 279.

The two-level enhancement pursuant to U.S.S.G. § 

2G1.3(b)(4)(A) applies if “the offense involved the 

commission of a sex act or sexual contact.” Application Note 

1 incorporates the definitions of “sexual act” and “sexual 

contact” stated in 18 U.S.C. §§ 2246(2)-(3). “Sexual act” is 

“the intentional touching, not through the clothing, of the 

genitalia of another person who has not attained the age of 16 

years with an intent to abuse, humiliate, harass, degrade, or 

arouse or gratify the sexual desire of any person.” 18 U.S.C. 

§ 2246(2)(D). “Sexual contact” is “the intentional touching, 

either directly or through the clothing, of the genitalia, anus, 

groin, breast, inner thigh, or buttocks of any person with an 
15

intent to abuse, humiliate, harass, degrade, or arouse or 

gratify the sexual desire of any person.” 18 U.S.C. § 2246(3). 

In Pawlowski‟s view, if Congress had intended to 

include masturbation within the meaning of the statute, the 

statute would have read “of any person or of one‟s self.” By 

contrast, the government argues that: “The definition says any 

person. And Mr. Pawlowski is any person.” Indeed, “any” 

means “every.” See, e.g., OXFORD ENGLISH DICTIONARY (2d 

ed. 1989) (“In affirmative sentences [any] asserts concerning 

a being or thing of the sort named, without limitation as to 

which, and thus constructively of every one of them, since 

every one may in turn be taken as a representative.”). 

Pawlowski is, of course, a person and thus “of any person” 

would include him. 

Moreover, turning to the statute itself, “where 

Congress includes particular language in one section of a 

statute but omits it in another section of the same Act, it is 

generally presumed that Congress acts intentionally and 

purposely in the disparate inclusion or exclusion.” Dean v. 

United States, 129 S. Ct. 1849, 1854 (2009); see also United 

States v. Mobley, 956 F.2d 450, 452-53 (3d Cir. 1992) (“It is a 

fundamental canon of statutory construction that where 

sections of a statute did not include a specific term used 

elsewhere in the statute, the drafters did not wish such a 

requirement to apply.”). Here, therefore, Congress 

presumably intended to distinguish between “of any person”

in 18 U.S.C. § 2246(3) and “of another person” in 18 U.S.C. 

§ 2246(2)(D), so that “of another person” does not include 

oneself but “of any person” does. Indeed, the language of the

statute is unambiguous: it is clear that “of any person” 
16

includes a defendant himself and does not require the 

touching of the victim. 

Other courts of appeal have reached the same 

conclusion through similar reasoning. The Eleventh Circuit 

Court of Appeals concluded that “sexual contact” includes 

“the act of masturbating” because the phrase “of any person” 

applies “to all persons, including [defendant] himself.” See

United States v. Aldrich, 566 F.3d 976, 979 (11th Cir. 2009). 

In that case, the District Court applied a two-level 

enhancement at sentencing under U.S.S.G. § 2G2.1(b)(2)(A) 

after finding that the defendant‟s “masturbating for a minor 

female in front of his web camera constituted a „sexual 

contact.‟” Id. at 978. The defendant argued, as Pawlowski 

does here, that “because one cannot „harass‟ oneself, the 

definition of „sexual contact‟ must not include masturbation.” 

Id. at 979. The Eleventh Circuit rejected that argument, 

noting that “a defendant need only intend to „abuse, 

humiliate, harass, degrade, or arouse or gratify‟ in order to 

violate the statute. That [defendant] could not do one of these 

things is immaterial so long as he could do another.” Id. We 

reject Pawlowski‟s argument for the same reason.

The Sixth Circuit Court of Appeals has also concluded 

that “sexual contact” includes masturbation in a similar but 

not identical context, i.e. where the defendant caused the 

minor victim to masturbate. See United States v. Shafer, 573 

F.3d 267, 279 (6th Cir. 2009). The Sixth Circuit found that 

“of any person” includes oneself based on the plain statutory 

language and further noted that the legislative history does 

not suggest otherwise. See id. at 273. 
17

In sum, because the language of the statute is plain and 

unambiguous, the phrase “of any person” encompasses 

“oneself.” The District Court, therefore, correctly interpreted 

§ 2G1.3(b)(4)(A) to include masturbation as a form of 

“sexual contact” covered by the language of the section. See

Sherman, 150 F.3d at 313 (“Statutory interpretation usually 

begins, and often ends, with the language of the statute.”).

III. CONCLUSION

For the reasons set forth above, we will affirm the

judgment of the District Court.