Prosecution statements not reversible; restrictions against using the internet not a First Amendment violation

Bobal was indicted by a grand jury on two counts of using a means of interstate commerce to attempt to persuade a minor to engage in sexual activity in violation of 8 U.S.C. sec. 2422(b) and committing a felony offense involving a minor after being required to register as a sex offender in violation of 18 U.S.C. sec. 2260A. Bobal had a prior conviction in Florida for using a computer to solicit a child to engage in sexual activity. His trouble began when he sent a picture of his penis to a man posing as a 14-year old girl. The F.B.I. got involved and an agent posing as the 14-year-old girl began exchanging text messages with Bobal which were sexual in nature and eventually arranged a meeting. When Bobal arrived at the meeting location he was arrested.

At his trial he stipulated to the element of the second count that at the time of the offense he was a registered sex offender. At his trial on the second count, the prosecutor stated in her closing argument that because Bobal stipulated to the element that he was a registered sex offender, the defense was telling the jury “We stipulate that the government proves count 2.”

On this appeal Bobal claimed that the prosecutor made a misstatement as to Bobal stipulating to the second count instead of just one element of that count. He also claims that her statement, “the only verdict as to count 2 is a verdict of guilty” was error because the jury was free to reevaluate the evidence and could reach an inconsistent verdict.

While the government conceded this was a slip of the tongue, the court decided that in the full context of the statement a reasonable juror would have understood the prosecutor to contend that Bobal had stipulated to only one element of the statute and not the entire count. As to the other statement, the court of appeals saw this as an argument meant to persuade the jury and not as 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.” It found that neither of the statements was improper. Even if they were, it explained that 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.

Bobal also challenged a special condition of his lifetime term of supervised release that prohibits him from using a computer except for work and with the prior permission of the district court. The court of appeals upheld this restriction because it is reasonably related to legitimate sentencing considerations, namely the need to protect both the public and sex offenders themselves from potential abuses of the internet. The court found the restriction was not in violation of Packingham v. North Carolina, a decision by the USSCt striking a North Carolina law prohibiting sex offenders who completed their sentence from accessing social networking websites that permitted children to be present as a violation of the First Amendment. The court of appeals distinguished Bobal’s situation because he was still under a court sentence, his restriction was intended to prevent him from engaging in activity that could result in his repeating that offense, and he could obtain permission from the court to use it for employment or for other reasons.