Facts: Appellant, a resident of Virginia entered an online chat room and began conversation with an undercover police officer. The undercover’s persona was that he had access to a 12 year old girl and a 3 year old boy, and had previously engaged in sexual activity with each. Appellant was very interested in gaining access to both the 12 year old and 3 year old and told the undercover that he had previously engaged in sexual activity with an 11 year old boy. I will spare you the details about the communications, but the highlights are that he wanted access to each, discussed the use of alcohol to relax the 12 year old, and Benadryl to distort the memory of the 3 year old; as well as the use of “jelly or honey to keep him enticed… to stimulate oral exploration.” When asked by the undercover if Appellant was into the reality of the encounter and not just the fantasy, Appellant was adamant that he was interested. He went into detail about what he had done to the 11 year old on a prior occasion. The undercover told Appellant that he was babysitting the 3 year old fairly soon. They agreed to meet in D.C. a day prior to the babysitting day in order to validate that neither were police officers. Appellant got cold feet and told the undercover that he was suffering from paranoia. To relieve his paranoia, the undercover offered to do a webcam session of “performing fellatio” on the 3 year old. Appellant responded, “Okay, fabulous.” Appellant was arrested in Richmond, the webcam session never took place. He was convicted, and sentenced to 22 years.
Issues: 1) Does 18 U.S.C. 2422(b) require direct communications with a minor, or do communications with an adult intermediary suffice? 2) Did the lower court err in its jury instructions? 3) Did the lower court err in denying the defense expert witnesses’ testimony?
Law: While a first impression in this particular court, short work was made of the “direct communications” argument from looking to the statutory language, as well as congressional intent.
Seven of our sister circuits have considered the issue and rejected a categorical requirement that the defendant communicate directly with a minor, rather than through an adult intermediary. United States v. McMillan, 744 F.3d 1033 (7th Cir.2014), cert. denied ––– U.S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d –––– (Oct. 6, 2014); United States v. Caudill, 709 F.3d 444 (5th Cir.2013), cert. denied, – –– U.S. ––––, 133 S.Ct. 2871, 186 L.Ed.2d 922 (2013); United States v.Berk, 652 F.3d 132 (1st Cir.2011); United States v. Douglas, 626 F.3d 161 (2d Cir.2010) (per curiam); United States v. Nestor, 574 F.3d 159 (3d Cir.2009); United States v. Spurlock, 495 F.3d 1011 (8thCir.2007); United States v. Murrell, 368 F.3d 1283 (11th Cir.2004).
Analysis: “[C]onventional usage of persuade, induce, entice, and coerce encompasses the use of intermediaries, [Appellant’s] position is undermined by Congress’s inclusion of the phrase “or attempts to do so” in the statutory text. The inclusion of the verb “attempt” in § 2422(b) is quite significant, because “[t]here is no general federal ‘attempt’ statute. A defendant therefore can only be found guilty of an attempt to commit a federal offense if the statute defining the offense also expressly proscribes an attempt.” United States v. Hopkins, 703 F.2d 1102, 1104 (9th Cir.1983)”
Holding: Today, we join our sister circuits and hold that communications with an adult intermediary to persuade, induce, entice, or coerce a minor are punishable under § 2422(b), so long as the defendant’s interaction with the intermediary is aimed at transforming or overcoming the minor’s will in favor of engaging in illegal sexual activity.
This is a case of winning the battle but losing the war. Based on the aforementioned holding, the court found that the judge erroneously instructed the jury by including the language “The government must only prove that the defendant believed that he was communicating with someone who could arrange for the child to engage in unlawful sexual activity.”
Holding: In light of the substantial influence that the erroneous instructions could have had on the jury, we vacate [Appellant’s] conviction and remand for a new trial.
In addition to the two aforementioned issues, the court considered Appellant’s other raised issue regarding the denial of his expert’s testimony.
To support his “fantasy only” defense, Appellant wanted to introduce the testimony of an expert witness who would 1) Say Appellant does not suffer from any of the psychiatric conditions that are “associated with a desire to have sexual contact with children or that may predispose an individual to want to engage in sexual activity with a child,” (the “Diagnostic Testimony”), and 2) Discuss the relationship between viewing child pornography and sexual interest in children, (the “Child Pornography Testimony”)
The district court excluded the testimony in its entirety because 1) Defense’s opposition brief (to the Government’s motion to exclude testimony) contradicted his Rule 16 disclosure, and 2) the testimony was of little probative value considered the elements of the offense.
On appeal the court found error in the exclusion of this testimony because both sides made Appellant’s sexual interest in children the focal point. The Government argued Appellant’s sexual interest in children in its closing. (On appeal, the Government conceded that Appellant’s sexual interest in children was relevant).
Holding: Reversed and Remanded