Enticing A Minor For Sex

United States v. Hite, 769 F.3d 1154 (D.C. Cir. 2014)

Joining every other Circuit, the DC Circuit holds that an enticement prosecution under § 2422(b) does not require that the defendant communicate directly with the child; communicating through an intermediary also constitutes enticement. Nevertheless, the communication with the intermediary must be intended to persuade the child to engage in sex, or to procure the child to have sex with the defendant. Simply communicating with an adult who says that he will “arrange” for a sexual rendezvous with a child is not sufficient. Nor is it sufficient if the communication with the adult is designed only to “cause” the child to have sex with the defendant. Rather, there must be an effort to have the intermediary induce, persuade, entice or coerce the child to have sex with the defendant.

United States v. Howard, 766 F.3d 414 (5th Cir. 2014)

The Fifth Circuit upheld the defendant’s conviction for attempted enticement of a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b). The defendant communicated with an undercover agent about having sex with the agent’s daughter. There were several communications and the defendant instructed the agent to have sexual contact with the daughter to get her ready (groomed) and also sent a nude photo of himself. However, when the agent suggested that the defendant travel to meet “her” and the daughter, he refused. The Fifth Circuit held that the evidence was sufficient to support an attempt conviction, but just barely and that this case represented the outer limit of what could be prosecuted as an attempt. Id. at 427.

United States v. Taylor, 640 F.3d 255 (7th Cir. 2011)

18 U.S.C. § 2422(b) makes it a ten-year felony for anybody who, “using a facility of interstate or foreign commerce knowingly persuades, induces, entices, or coerces andy invidivual who has not attained the age of 18 years, to engage in prostitution, or any sexual activity for which any person can be charged with a criminal offense.” The term “sexual activity” is not defined. In this case, the Seventh Circuit concluded tha the definition of “sexual act” which applies to crimes under 18 U.S.C. § 2246(2)(D), should apply. The conduct in this case would have amounted to a misdemeanor under Indiana law (i.e., masturbation). The Seventh Circuit determined that it would make no sense to impose a ten-year mandatory minimum sentence for conduct which does not involve a “sexual act,” and only meets undefined term “sexual activity” which could even apply to conduct which involves no touching at all.

United States v. Broxmeyer, 616 F.3d 120 (2d Cir. 2010)

The defendant was charged with violating 18 U.S.C. § 2423, transporting a minor in interstate commerce with intent that the individual engaged in any sexual activity for which any person can be charged with a criminal offense. This statute is the offspring of the original Mann Act, which dealt primarily with transporting prostitutes across state lines. In this case, the defendant was a field hockey coach who was charged with transporting one of his players (a minor) across state lines in connection with a practice and engaging in sexual conduct with her. The Second Circuit reversed the conviction, because there was insufficient evidence to support the government’s theory that the defendant caused the defendant to travel across state lines with regard to the trip to the practice (her father drove her to the practice and was available to pick her up the next day, so the defendant was not the cause of her interstate travel). The defendant did eventually drive the minor back home after practice and during the return trip, they engaged in sexual conduct. However, the evidence established that the sexual conduct occurred prior to the crossing of a state line and in order to be guilty of a § 2423 offense, the defendant must form the intent to engage in sexual conduct before crossing the state line and then engage in the sexual conduct after crossing the state line.

United States v. Joseph, 542 F.3d 13 (2d Cir. 2008)

The trial court instructed the jury that an enticement offense (18 U.S.C. § 2422(b)) could be found if the defendant made the possibility of having sex with the defendant more appealing. In other words, if the defendant, over the Internet, was communicating with (what he thought was) a young girl, and made the possibility of having sex with him appealing, this would constitute enticement. The Second Circuit reversed. “Enticement” is not the same as “making more appealing.”

United States v. Gladish, 536 F.3d 646 (7th Cir. 2008)

The defendant communicated with a person he believed was a young girl (actually an undercover agent) in an Internet chatroom. He suggested that at some point in the future, they should engage in sex. The Seventh Circuit held that this “hot air” did not qualify as enticement to engage in prohibited sexual activity in violation of 18 U.S.C. § 2422(b). Equating the enticement statute to an attempted crime, the court held that such talk did not involve a “substantial step” toward the commission of the crime. Judge Posner quoted T.S. Elliot: “Between the Conception; And the Creation; Between the Emotion; And the Response; Falls the Shadow.”