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
The opinion of the court was delivered by: Roth, Circuit Judge:
Argued on October 25, 2011
Before: FISHER, VANASKIE and ROTH, Circuit Judges
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.
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 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 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).*fn1 Pawlowski pled not guilty and proceeded to a jury 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 ...