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Comments on Current Events In Criminal Law
August 13, 2007
Online Solicitation of a Minor The Impact of Adam Walsh on 18 U.S.C. § 2422(B)
It was a perfect photo op: President George W. Bush surrounded by crime victim advocates and key Congressional leaders as he signed on July 27, 2006 the “Adam Walsh Child Protection and Safety Act of 2006.”
Twenty-six years ago young Adam Walsh was abducted from a Florida department store and murdered. His parents, John and Rev, have waged relentless, high-profile efforts to protect children from “sex predators.” The Adam Walsh Child Protection and Safety Act was the result of their efforts, and the efforts of many other parents of murdered children who lobbied Congress for the key component of the Act: an expanded National Sex Offender Registry, imposing up to a maximum of twenty years for sex offenders who do not register.
The second key component of the Act is that it increased the minimum sentence that can be imposed for a violation of 18 U.S.C. § 2422(b) from five to ten years. Section 2422(b) provides:
“Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any individual 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, or attempts to do so, shall be fined under this title and imprisoned not less than 10 years or for life.”
Most people in the public have either watched or heard of the NBC Dateline program “To Catch a Predator,” featuring Chris Hansen. What many do not realize is that both state and federal law enforcement officials are trolling the Internet trying to ensnare potential child predators. The undercover operatives pass themselves off as young teenagers, female and male, willing to meet with a predatory adult to have sex. Prior to setting up the actual meet, the undercover operatives get the potential predator to be very explicit in what he wants from the teenager. The conversations are quite often graphic. The undercover operative will get the potential predator to describe what he will be wearing to the meet, what kind of vehicle he will be driving, and the exact location for the meet.
Is there a defense to a charge brought under § 2422(b)?
Yes, but its chance of success is extremely remote given the current state of the law: legal impossibility. This defense is premised on the legal theory that there was no “actual minor” was involved in the indicted offense. This defense has been uniformly rejected by the Federal appellate courts [Fifth, Ninth, Eleventh, and Third circuits]. See, United States v. Farner, 251 F.3d 510, 512 (5th Cir. 2001); United States v. Meek, 366 F.3d 705, 718 (9th Cir. 2004); United States v. Root, 296 F.3d 1222, 1227 (11th Cir. 2002); United States v. Tykarsky, 446 F.3d 458 (3rd Cir. 2006).
The defense has also been rejected in aggravated sexual assault cases brought under Tex.Penal Code § 22.021. See, Chen v. State, 42 S.W.3d 926 (Tex.Crim.App. 2001).
Legal impossibility occurs when the intended acts, even if completed, would not amount to a crime. See, United States v. Berrigan. 482 F.2d 171, 188 (3d Cir. 1973). The following are examples of legal impossibility recognized by the courts: a person accepts goods he mistakenly believed were stolen; a hunter shoots a stuffed deer believing it to be alive; and a prisoner attempts to smuggle letters out of prison under the mistaken belief the warden has not consented. See, United States v. Tykarsky, supra. 446 F.3d at 465.
A “factual impossibility” is distinguishable from legal impossibility. A classic example of “factual impossibility” occurs “when a person fires a gun at a bed intending to kill another person, but the intended victim is not in the bed; the crime cannot be completed because of extraneous factors beyond the shooter’s control.” Id.
Factual impossibility is not a defense, although “the distinction between factual impossibility is elusive at best. Most federal courts have repudiated the distinction or have at least openly questioned its usefulness.” United States v. Farner, supra., 251 F.3d at 512.
A legal impossibility defense under § 2422(b) involving an undercover agent is premised on the theory that there was no “actual minor child” involved in the online conversations with the potential predator. The federal courts have dismissed this theory, pointing to the “attempt” provisions of § 2422(b). The Ninth Circuit reasoned that this “underscore[d] Congress’s effort to impose liability regardless of whether the defendant succeeded in the commission of his intended crime.” United States v. Meek, supra, at 718. The Eleventh Circuit said the “attempt” provision indicates the “fact that [the defendant’s] crime has not ripened into a completed offense is not obstacle [to a conviction].” United States v. Root, supra, at 1227.
The Third Circuit more recently held that “interpreting § 2422(b) to require the involvement of an actual minor would render the attempt provision largely meaningless because, as a practical matter, little exists to differentiate those acts constituting ‘enticement’ and those constituting ‘attempted enticement’. The attempt provision is therefore most naturally read to focus on the subjective intent of the defendant, not the actual age of the victim.” United States v. Tykarsky, supra, at 466-67.
Why raise the legal impossibility defense?
At least two U.S. District Court decisions have questioned the legislative intent of § 2422(b), saying that the legislative history of the statute requires the involvement of an actual minor before there can be a conviction pursuant to the statute. United States v. Helder, No. 05-00125-01-CR-W.DW (W.D. Mo. August 5, 2005) and United States v. Hicks, No. 05-00042-01-CR-W-D.W, 2005 WL 2090785 (W.D.Mo. August 29, 2005)[both decisions unpublished]. These decisions relied heavily on an unadopted amendment to § 2422(b) that would have made it a crime to “knowingly contact an individual, who has been represented to the person making the contact as not having attained the age of 18 years” for the purpose of engaging in sexual activity. The District Court in Helder and Hicks reasoned by that rejecting the amendment that would have imposed liability on a law enforcement agent posing as a minor, Congress had implied the need for an “actual minor” before there could be a violation of § 2422(b). See, United States v. Tykarsky, supra, at 468. See also: United States v. Helder, 452 F.3d 751, 753-54 (8th Cir. 2006)[En Banc decision following lead of other circuits decision that “actual minor” not prerequisite in § 2422(b) cases].
These two Federal district court decisions at the very least legitimizes raising the defense until the United States Supreme Court can resolve the matter. The fact that the issue has been presented to so many courts of appeal indicates a legitimate controversy as to whether § 2422(b) requires the use of an “actual minor.”
The defense of legal impossibility becomes a virtual necessity with the Adam Walsh Child Protection and Safety Act amendment that increases the minimum sentence exposure from five to ten years. A defense attorney will have a difficult time selling a plea agreement to a client facing a mandatory 10-year minimum with an 85% sentence service requirement.
The only other possible defense is entrapment. Because of the way potential predators are so deftly led into possibility of sex with a minor by the undercover operatives, entrapment has less likelihood of success than legal impossibility. “Entrapment is an affirmative defense that requires a defendant to show he was induced to commit a criminal act by a government agent and that he was not predisposed to commit the act without the inducement.” See, United States v. Thompson, 130 F.3d 676, 689 (5th Cir. 1997).
First, in virtually all of these online contacts, the potential predator makes the initial contact and initiates the sexual suggestions. These transcribed conversations, and the undercover agent authenticating them in court, the potential predator cannot say he was “induced” in the attempt to have sex with a minor. Second, without governmental inducement, the lack of predisposition fails.
Legal semantics offer little encouragement as well. For example, in United States v. Yost, 479 F.3d 815 (11th Cir. 2007) the Eleventh Circuit addressed an appeal in a § 2422(b) case in which the defendant argued that there was insufficient evidence to sustain his attempt convictions. Id., at 819. First, the defendant alleged that he was never in a position to engage in sexual activity and that his online conversations (and those conversations were quite explicit) with the thought-to-be child were nothing more than “talk.” Second, the defendant alleged that he traveled to the meet site not to actually meet the alleged child but the adult he suspected of role-playing as a minor. Id.
The first element of an attempt is the specific intent to persuade, induce, entice, or coerce a child to engage in criminal sexual activity. Id. The Eleventh Circuit dismissed this aspect of the defendant’s argument, pointing out:
“ …Nothing in the transcripts support Yost’s claim he believed he was communicating with adult women role-playing as minors. Yost repeatedly asked Lyn and Candi to engage in oral sex and sexual intercourse, posted pictures of his genitalia, and made arrangements to meet them. He also arrived at the scheduled time and place to meet Candi. Based on this, we conclude that a reasonable jury could find Yost had the specific intent to persuade, induce, entice or coerce Lynn and Candi to engage in criminal sexual activity.” Id.
The second element of attempt requires that a defendant take a substantial step toward the commission of the underlying offense. The Eleventh Circuit said that “a substantial step can be shown when the defendant’s objective acts mark his conduct as criminal and, as a whole, ‘strongly corroborate the required culpability’ … The evidence at trial shows Yost committed the following objective acts toward Lynn. Yost repeatedly sent sexually-explicit messages and asked if her body was mature, and if she had breasts and a ‘nice little bubble butt.’ He described how to perform oral sex and asked Lynn to ‘suck it.’ He posted a picture of his genitalia and asked if she ‘wanted it in her mouth,’ or ‘inside’ of her. He called Lynn on the telephone, and, after hearing her voice, made arrangements to meet her so they could engage in sexual activity. These acts, taken as a while, strongly corroborate Yost’s culpability and provide clear evidence that his conduct was criminal. Accordingly, we find Yost took a substantial step in an attempt to knowingly persuade, induce, entice or coerce Lynn to engage in criminal sexual activity.” Id., at 819-20 [Internal citation omitted].
Finally, Yost did not travel to meet Lynn but he did travel to meet Candi. The Eleventh Circuit, following the lead of the Sixth and Tenth Circuits, that travel is not necessary to sustain a conviction. Id. at 820. See also: United States v. Bailey, 228 F.3d 547, 639-40 (6th Cir. 2000); United States v. Thomas, 410 F.3d 1235, 1246 (10th Cir. 2005). The Eleventh Circuit adopted the Tenth Circuit rationale that the online conversations went beyond “harmless banter” when Yost made arrangements for the meeting with Lynn even though he did not actually travel to meet with her. Id.
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