Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:06-cr-00109-RL-APR-1-Rudy Lozano, Judge.
The opinion of the court was delivered by: Tinder, Circuit Judge.
Before CUDAHY, MANION, and TINDER, Circuit Judges.
A jury convicted Erik D. Zahursky of attempting to coerce or entice a minor under the age of eighteen to engage in sexual activity in violation of 18 U.S.C. § 2422(b). The district court sentenced him to 262 months' imprisonment and 20 years' supervised release. Zahursky appeals his conviction and sentence. He challenges the denial of his motion to suppress evidence obtained pursuant to a warrantless search of his vehicle, the admission at trial of certain evidence under Federal Rule of Evidence 404(b), and the application of a two-level enhancement under U.S.S.G. § 2G1.3(b)(2)(B) for unduly influencing a minor. We affirm Zahursky's conviction, but vacate his sentence and remand for resentencing.
On June 2, 2006, someone using the screen name "Gracepace101" ("Gracepace") contacted "Sad_Shelly200" ("Shelly") in an adult internet chat room in Yahoo!. Shelly was the screen name of a fictitious fourteen-year-old girl created by Special Agent Ryan Moore, a member of the Electronic Crime Squad of the United States Secret Service. Shelly's Yahoo! profile which could be viewed by other persons in the chat room included a photo of a young girl. Moore checked the Yahoo! profile for Gracepace and learned that Gracepace's real name was Erik D. Zahursky.
In the first chat session, Zahursky initiated contact with "ur a cutie-[b]ummer i am old enough to be ur daddy." Shelly asked Zahursky how old he was, and he answered "34." He said that he was looking for ladies, but most were too far away, taken, too old or too young, but added that "i have [d]one a 14 year ol[d]." Zahursky asked Shelly if she was sexually active and whether she liked "older men." He stated that she was "lil young to be intimate with" unless she didn't mind. Zahursky asked Shelly where she lived and offered to meet with her to engage in sexual activity, saying: "woul[d] u like to [h]ave sex wit[h] me?" Shelly asked about his previous sexual encounters and whether the women were "like me?" Zahursky responded, "One was, s[h]e is now 18." The chat session continued for almost two hours with Zahursky explaining what he wanted them to do to each other sexually. About midway through the chat session, Zahursky suggested that he and Shelly meet and "play at [yo]ur house w[h]ile mommy is at work?" He cautioned that they would have to be discreet "because of society's view of age." Shelly asked about "the other girl like me." Zahursky reiterated that she was eighteen years old and said the last time he saw her she was fifteen. A few minutes later, Zahursky emailed Shelly, stating that "to initiate [yo]u into womanhoo[d] would be an honor." He also expressed an interest in a threesome involving two ladies.
Moore, posing as Shelly, had numerous chats and email communications with Zahursky almost daily from June 2 to June 21, 2006. In their chats and emails, Zahursky gave detailed descriptions of the sexual activities in which he wanted to engage with Shelly. His sexual intentions were clear. On June 10, Zahursky emailed Shelly that he would try to visit her the last two weeks of July.
On June 13, Zahursky emailed Shelly about having a threesome with two girls. He said that he was on the internet a few days before and "found another 14-year-old lady who might be interested in a 3-some." He discussed the sexual activities that the three of them could do together. Shelly wrote back to Zahursky, stating that she had figured out how they could get together-she would tell her mom that she was staying over with her friend Lindsey. In an instant message later that evening, Shelly asked Zahursky if he really wanted to be with her since she was inexperienced, and he said, "yes-we can experience each other-want to be with an old man? Another girl your age?" Shelly wrote, "sure, but I'm only 14, are you sure you still want me?" Zahursky replied, "the other girl is 14." He added that "Holly" was asking whether Shelly liked her. The next day, Zahursky emailed Shelly that the other fourteen-year-old was "Holly1989cutie" ("Holly").
Subsequently, he emailed Shelly that he hoped they could get together and that Holly could join them. He also suggested that Shelly's friend Lindsey might like to join them for "a sleep over for a week." Shelly emailed Zahursky on June 18 indicating that Lindsey was interested in joining them but would be away in July, so they had to meet in June. In another chat session, Shelly told Zahursky that Lindsey wanted to know if he had "any experience with girls our age, because she wants to know if you know how to treat us so it won't hurt." Zahursky wrote back "I won't hurt you. I have had one at 14." Shelly questioned, "For real?" and Zahursky replied, "Yes."
Zahursky and Shelly arranged to meet on June 21 at a Starbucks in Valparaiso, Indiana. He told her that he drove a gold Mercury Sable and described the clothing he would be wearing to their meeting. When Zahursky said he did not have enough money for a hotel room, Shelly suggested that they stay with Lindsey in her sister's dorm room. Subsequent emails and chats disclose that Zahursky and Shelly agreed to spend a few days together in the dorm room.
On June 19, Zahursky sent an email to Lindsey, using Shelly's email account, discussing his sexual intentions for the three of them. He asked whether he should bring condoms. Later that afternoon in a conversation about their meeting, Zahursky asked Shelly, "u want me to bring con[d]oms?" Shelly asked about hooking up "with the other girl that you met." Zahursky said that the other girl's screen name was "Holly1989cutie." Later he mentioned Holly again, saying that he was trying "to get a meet" for the three of them. Shelly asked if Zahursky was going to bring the K-Y stuff since it was her first time and she didn't want it to hurt. He said that he would check a pharmacy for K-Y warming lube. In a June 20 instant message, Shelly again asked if Zahursky was going to bring the K-Y. He responded that he had to check the pharmacy and that he would have the lube.
On June 21, Zahursky drove from his home in Lexington, Illinois, across state lines to the Starbucks in Valparaiso. He was driving a Mercury Sable and wearing the clothing he had described to Shelly. When he arrived at Starbucks, he went inside where he was approached by Moore and other agents who asked him to step outside. The agents took Zahursky into custody, patted him down, and handcuffed him in the parking lot. Moore knew from Zahursky's conversations with Shelly that Zahursky had discussed the use of condoms and had said that he would bring some form of K-Y warming lubricant to his meeting with Shelly. However, no condoms or K-Y lubricant were found on Zahursky's person.
Meanwhile, Secret Service Agent Richard Bardwell had begun to search Zahursky's vehicle located outside of Starbucks. In the glove box, Bardwell found a coin purse that contained three condoms. From the trunk, he recovered a duffel bag that contained lubricant and more condoms. The agents searching the vehicle also found a printed copy of directions from Zahursky's residence in Illinois to the Starbucks in Valparaiso and a printed email message between Zahursky and Shelly. No warrant to search Zahursky's vehicle had been obtained.
Then the agents transported Zahursky to the Valparaiso police station where he was interviewed by Moore and another agent. Prior to any questioning about the offense, the agents advised Zahursky of his Miranda rights. Zahursky waived them and gave a recorded statement. During the interview, Zahursky stated that he was in Valparaiso to meet Shelly and Lindsey, two fourteen-year-old girls with whom he had on-line correspondence and with whom he intended to engage in sex. He also gave written consent to search his vehicle. At some point during the interview, however, the agents had told Zahursky about some of the items they had found in his car. It is unclear whether this occurred before or after Zahursky gave his consent to search the vehicle.
Zahursky was tried by a jury. The district court, over the defendant's objection, admitted three pieces of evidence under Rule 404(b). The first was testimony by a young lady (who we will refer to as "SS") that she had sexual intercourse with Zahursky on two occasions five years earlier when she was fourteen or fifteen years old. The second piece of evidence was an internet chat on June 14, 2006, between someone using the Gracepace screen name and someone with the screen name "Xanthery." The person using the Gracepace name asked Xanthery if she would "ever consi[d]er [h]aving sex with an ol[d]er guy-like maybe me?" Xanthery's response was, "would you ever have sex with someone my age??" The reply was, "i have-14."
The third piece of Rule 404(b) evidence was several internet chats from June 11 through 15, 2006, between Zahursky and someone with the screen name "Holly1989cutie." On June 11 Holly identified herself as a fourteen-year-old female and asked if Zahursky liked younger girls. He said yes and offered to teach Holly how to have sexual intercourse and receive oral sex. Holly asked Zahursky if he had been with girls her age, and he answered yes, a fourteen-year-old. He suggested that while Holly's mom was at work, they could have a few sessions and continue at a hotel. He described the sexual things he wanted them to do to each other. Later that day, he sent Holly a message, saying that he couldn't wait to touch her all over. On June 13, Zahursky sent Holly an instant message, stating that he may have found another fourteen-year-old girl who would like to join them in a threesome. He said he wanted the three of them to get together for a few days and get acquainted sexually. Zahursky sent a similar message a few hours later, this time indicating that the other fourteen-year-old's screen name was "Sad_Shelly200." On June 15, he sent Holly a message saying that he could come over while her mom was at work so they could get to know each other and that she could spend the night or a couple of days with him "playing naughty."
Following the admission of the Rule 404(b) evidence, the district court gave the jury limiting instructions. The court instructed that SS's testimony and the chats between Gracepace101 and Holly1989cutie could be considered "only on the question of intent, motive, absence of mistake and modus operandi" and "only for this limited purpose." The court also instructed the jury that the evidence of the chat between Gracepace101 and Xanthery could be considered "only on the question of intent, motive and absence of mistake" and only for such limited purpose.
Zahursky testified at trial. He claimed that he talked to minors in adult chat rooms to use "reverse psychology" to get them to leave the chat rooms. He alleged that he was about to cut off the chats with Shelly when he suspected she was a cop, which made him curious, so he went to meet her to confirm his suspicions. He denied that he was going to the Starbucks to meet Shelly and have sex with her.
The jury convicted Zahursky of attempting to coerce or entice a minor under the age of eighteen to engage in sexual activity in violation of ...