United States v. Helder

Opinion

 [*751]  SMITH, Circuit Judge.

Jan P. Helder, Jr. was charged with using a facility of interstate commerce, the Internet, to attempt to entice a minor to engage in illegal sexual activity, in violation of 18 U.S.C. § 2422(b). The district court granted Helder's motion for judgment of acquittal. The government appeals, arguing that the district court erred by granting Helder's motion for judgment of acquittal because § 2422(b) does not require the intended victim to be an actual minor. We reverse.

I. Background

Helder, a 41-year-old male, entered an Internet Yahoo! chat room under the [**2]  screen name "trialkc" while at his law office. An undercover officer, Detective Mark Stephens of the CyberCrimes Unit of the Platte County, Missouri, Sheriff's Department, using the screen name "lisa_mo_13" ("lisa"), entered a chat room labeled "Missouri 1." Within ten minutes of entering the chat room, "lisa" was instant messaged by "trialkc." ² "Trialkc" asked "lisa" if she was "near [K]ansas [C]ity." When "lisa" answered in the affirmative, "trialkc" asked "lisa" how old she was, and "lisa" responded that she was 14 years old.  [*752]  "Trialkc" told "lisa" to watch out for "dirty ole men." When "lisa" said that most of the men in the chat room were cool, "trialkc" opined that was because of a "sting" that was occurring. ³

 [**3]  "Trialkc" continued to chat with "lisa," eventually asking her about her looks, her clothing, her bra size, her sexual experience, and when her mother was home. "Lisa" told "trialkc" that she had previously engaged in sexual activity with an older man whom she met online and with whom she "did it" over Christmas break while her mom was at work. "Trialkc" asked "lisa" if she was "looking for another experience" to which "lisa" responded that she was "thinking it would be cool." "Trialkc" obtained "lisa's" address and indicated that he would meet her at her apartment complex in 20 minutes. After the chat ended, Detective Stephens accessed "trialkc's" Yahoo! Profile to learn his identity. While the profile was not complete, it did contain a picture of a male wearing a blue shirt in an office setting.

Detective Stephens and a colleague went to the undercover apartment to wait for "trialkc" to arrive. Detective Stephens observed a white BMW drive in the south entrance of the apartment complex parking lot that "lisa" had identified during the chat. As the vehicle drove past, Detective Stephens identified the driver as "trialkc" from the Yahoo! profile photograph. Detective Stephens observed [**4]  the driver's shirt and noticed it looked like the shirt worn by "trialkc" in the profile photograph. After spotting the detectives, the driver sped away before he could be confronted.

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