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? Continue reading