United States v. Lee - 603 F.3d 904 (11th Cir. 2010)

Rule:

The United States Court of Appeals for the Eleventh Circuit has squarely rejected the argument that because the defendant did not directly communicate with a minor or a person he believed to be a minor, his conduct was not criminally proscribed by the language of 18 U.S.C.S. § 2422(b). The conduct of a defendant who communicates only with an adult intermediary fits squarely within the definition of "induce." One can persuade, entice, or coerce a minor to engage in sexual activity through an adult intermediary because sexual predators can and do attempt to persuade children to engage in sexual activity through the victim's parents or guardians.

Facts:

For several months, defendant Van Buren Lee communicated online with a postal inspector who was posing as "Candi Kane," the "open-minded mother of two beautiful minor girls.” Defendant and Candi repeatedly discussed whether, how, and when Candi would grant defendant sexual access to her daughters, and defendant produced and sent Candi and her daughters sexually explicit images of him. Eventually defendant and Candi spoke by telephone. Defendant also requested that Candi produce and send to him sexually explicit photographs of her daughters in specific poses, which, so far as defendant knew, she did. Defendant was convicted of attempted enticement of a minor, 18 U.S.C.S. § 2422(b), attempted production of child pornography, 18 U.S.C.S. § 2251(a), (e), and knowing receipt of child pornography, 18 U.S.C.S. § 2252A(a)(2)(A). Defendant appealed, contending that he communicated only with an adult intermediary, he attempted to exploit only fictitious minors, he lacked the intent necessary to support his convictions, and his alleged speech without conduct did not establish the attempt crimes.

Issue:

Could defendant’s convictions be upheld, notwithstanding the fact that he only communicated with an adult intermediary? 

Answer:

Yes.

Conclusion:

The court affirmed defendant’s convictions, holding that communicating only with an adult intermediary fit squarely within the definition of "induce" under § 2422(b), and § 2251(a), (e). The argument that each of the verbs of § 2422(b) contemplated direct interaction with a minor aimed at oral persuasion, did not apply to § 2251(a), (e). No actual minor victim was required under § 2422(b). The government satisfied § 2422(b) by proving defendant attempted to persuade Candi's daughters to agree to engage in sex acts. Defendant repeatedly professed interest in the daughters. His internet and telephone conversations went beyond mere preparation: he repeatedly discussed in graphic detail how he wanted to complete the act. The totality of his conduct showed a substantial step" toward enticing a minor to engage in a sex act. He had described how the daughters were to pose in photos and gave his mailing address. The § 2251(a), (e), conviction was supported. He believed Candi had taken sexual photos of her daughters and mailed them, and he retrieve his anticipated package which had child pornography. The § 2252A(a)(2) conviction was supported.