United States v. William Brinson Ball

U
        USCA11 Case: 18-14700    Date Filed: 11/17/2020   Page: 1 of 5



                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-14700
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 8:18-cr-00069-EAK-AAS-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

WILLIAM BRINSON BALL,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                           (November 17, 2020)



Before WILSON, ROSENBAUM and BLACK, Circuit Judges.

PER CURIAM:
            USCA11 Case: 18-14700            Date Filed: 11/17/2020        Page: 2 of 5



       William Brinson Ball appeals his conviction for attempted child enticement

in violation of 18 U.S.C. § 2422(b) after pleading guilty to this offense. Ball

argues applying the statute extraterritorially is unconstitutional and that his conduct

did not violate the statute. After review, 1 we affirm.

                                        I. DISCUSSION

A. Waiver

       Section 2422(b) makes it unlawful to use “any facility or means of interstate

or foreign commerce” to induce, entice, or coerce a minor “to engage in

prostitution or any sexual activity for which any person can be charged with a

criminal offense,” or to attempt to do so. 18 U.S.C. § 2422(b). The indictment

charged Ball with attempting to entice a minor to engage in sexual activity that

would have violated Florida law. The factual basis set forth in his plea agreement

detailed how Ball, who then resided in Dubai, communicated over the Internet with

a special agent posing as the father of a seven-year-old child to organize a sexual

encounter with the child, paid $5,000 for the encounter, and flew from Dubai to

Orlando, Florida, and then drove to Tampa, Florida for the encounter.



       1
          Because Ball raises his constitutional challenge to § 2242(b) for the first time on appeal,
our review of this issue is limited to plain error. See United States v. Belfast, 

611 F.3d 783

, 815
(11th Cir. 2010) (providing a constitutional claim raised for the first time on appeal is reviewed
for plain error). We reject Ball’s attempt to characterize the issue as one of subject matter
jurisdiction. See Morrison v. Nat’l Australia Bank Ltd., 

561 U.S. 247

, 254 (2010) (holding
extraterritorial application of a statute is a merits question, not a question of subject matter
jurisdiction).
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          USCA11 Case: 18-14700        Date Filed: 11/17/2020    Page: 3 of 5



      Ball argues applying the statute to extraterritorial conduct is

unconstitutional. He contends his conduct did not violate the statute because “the

enticing action occurred outside the United States” and involved proposed sexual

conduct that would have occurred in international waters without violating any

Florida law. The government responds Ball has waived any challenge to his

§ 2422(b) conviction because his argument that his criminal conduct was entirely

extraterritorial contradicts the admissions he made in his guilty plea. In his reply,

Ball asserts he is not challenging the facts supporting his guilty plea, but rather the

legal conclusion, drawn from those facts, that his conduct violated the statute.

      Ordinarily, the entry of a valid guilty plea waives any objection to all non-

jurisdictional errors. United States v. Yunis, 

723 F.2d 795

, 796 (11th Cir. 1984).

However, a constitutional challenge to the statute of conviction survives a guilty

plea where the defendant’s claim is consistent with the defendant’s “knowing,

voluntary, and intelligent admission that he did what the indictment alleged.”

Class v. United States, 

138 S. Ct. 798

, 804-05 (2018) (holding a defendant who

pleaded guilty did not waive Second Amendment and due process challenges to

statute of conviction because claims did not “contradict the terms of the indictment

or the written plea agreement”). In pleading guilty, Ball acknowledged an

essential element of his offense was that “[h]ad the proposed sexual activity

occurred with a minor, one or more of the individuals engaging in the sexual


                                           3
          USCA11 Case: 18-14700        Date Filed: 11/17/2020    Page: 4 of 5



activity could have been charged with a criminal offense under the laws of the state

of Florida, as charged in the Indictment.” Ball’s constitutional challenge is

therefore foreclosed to the extent it is based on his contention that § 2422(b) does

not reach sexual conduct that would have occurred in international waters and

would not have violated Florida law. See

id. Nevertheless, Ball has

not completely waived his constitutional claim.

Although Ball admitted “he had traveled to Tampa, Florida, to meet with and

engage in sexual activities with a seven-year-old child” and had arrived at a

predetermined meeting location in Florida with a child’s stuffed animal and

various sexual paraphernalia, the plea agreement also described conduct that

presumably occurred from Dubai. To the extent Ball argues § 2422(b) does not

reach this conduct, this argument is not inconsistent with his guilty plea and

therefore not waived. See

id. B. Constitutional Claim

      Even assuming Ball’s guilt was based on conduct that occurred outside the

United States, however, the district court did not plainly err in accepting his guilty

plea. Because neither the Supreme Court nor this Court has addressed whether

§ 2422(b) extends to conduct occurring outside the United States, and the statute

itself does not specifically resolve this issue, we cannot say the district court

plainly erred even if it applied the statute extraterritorially. See United States v.


                                           4
           USCA11 Case: 18-14700       Date Filed: 11/17/2020    Page: 5 of 5



Lejarde-Rada, 

319 F.3d 1288

, 1291 (11th Cir. 2003) (“It is the law of this circuit

that, at least where the explicit language of a statute or rule does not specifically

resolve an issue, there can be no plain error where there is no precedent from the

Supreme Court or this Court directly resolving it.”); see also United States v.

Belfast, 

611 F.3d 783

, 816 (11th Cir. 2010) (rejecting constitutional challenge to

extraterritorial application of a criminal statute, and concluding “district court

could not have plainly erred,” where no binding authority addressed

extraterritoriality).

                                 II. CONCLUSION

       For the reasons above, Ball has failed to show plain error. Accordingly, we

affirm.

       AFFIRMED.




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