“It’s Y2K Pimpin” (Online Sex Trafficking)

The “Substantial Step” issue has also been raised on appeal in many § 2422(b) violation convictions.

The 9th Circuit defined a substantial step in Walters v. Maass, 45 F.3d 1355, 1358-59 (9th Cir. 1995). “In order to constitute a substantial step toward the commission of a crime, the defendant’s conduct must (1) advance the criminal purpose charged, and (2) provide some verification of the existence of that purpose.”  Another way of looking at it is whether the defendant’s actions “crossed the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances.”  United States v. Nelson, 66 F.3d 1036, 1042 (9th Cir. 1995).

Agreeing with the 3rd, 6th, and 10th Circuits, the 9th Circuit, in United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007), stated that “when a defendant initiates conversation with a minor, describes the sexual acts that he would like to perform on the minor, and proposes a rendezvous to perform those acts, he has crossed the line toward persuading, inducing, enticing, or coercing a minor to engage in unlawful sexual activity.”  In these situations, a defendant will succeed in his persuasion, inducement, enticement, or coercion, unless he is interrupted by a circumstance independent from him, such as a parent or law enforcement officer intervening, or the minor refusing.

In Goetzke, the defendant was found guilty of violating § 2422(b) when he attempted to persuade W, a minor, to engage in sexual activity.  He appealed his conviction challenging the sufficiency of the evidence.  The defendant, a registered sex offender, had met W on a Montana ranch during the summer of 2003.  Once W’s mother found out that there was a registered sex offender whose preference was young boys staying with the ranch owners, she had W sent home to her.  In the fall of 2003, the defendant began calling W on the telephone.  He would leave him messages saying that he missed W, calling him his “little brother.”  In February of 2004, the defendant sent W a letter from Montana that included photos taken of them during W’s stay at the ranch, and the defendant asked W for a picture of him wearing the pants he wore while in Montana.  The defendant also explained to W that he was gay and “liked guys more than girls,” but that he hoped W didn’t hate him because of that.  In addition, the defendant told W that he always wanted to tell him that he had a nice butt, but hoped that W wouldn’t tell anyone because it could get him in trouble…but that he “trusted him to keep it between them.”

In the defendant’s letter, he expressed his desire for W to go back up to Montana so they could go horseback riding again.  He told W about his new video games, and how he would buy W presents.  The letter also mentioned how the defendant missed wrestling with W, giving W backrubs, how he wanted to rub W’s butt and was sure W had “a nice peter,” and that he hoped he wasn’t bothering W by talking about sex.

W’s mother intercepted the letter and gave it to law enforcement, who responded to the letter pretending to be W.  The defendant wrote back, however this time the letter was much more sexual.  He told W what an erection was and how to masturbate.  He also described how he wanted to perform oral sex on W.

The defendant was charged with attempt because W never actually received the letters, and in order to be convicted of attempt, the defendant must have “intended to violate the statute and have taken a substantial step toward completing the violation.”

The 9th Circuit stated that “a rational juror could well have found that Goetzke knowingly tried to persuade, induce, entice, or coerce W to engage in prohibited sexual activity.”  The defendant knew W was underage, specifically directed his letters to W, made advances of a sexual nature, advised W how to stimulate himself, expressed his desire to see W naked and to “put his peter in his mouth.”  The letters were crafted to appeal to W, flatter him, impress him, and encourage him to come back to Montana – essentially “grooming” W for a sexual encounter in the future.

As my last blog post discussed, the meaning of persuade, induce, or entice is simply the common understanding of the words.  In this case, because of the prospect of gifts and “of the allure of the recreational activities,” the letters the defendant sent to W “fit neatly within the common understanding of persuade, induce, or entice.”  As a result, the Court found that the defendant had intended to persuade, induce, entice, or coerce W to engage in unlawful sexual activity.

That being said, the Court also looked at whether a rational trier of fact could find that “Goetzke took a substantial step toward completing the crime.”  Looking at the facts of this case, the Court affirmed the defendant’s conviction, stating that it is clear that the defendant’s actions – mailing flattering letters to W, describing sexual acts the defendant wanted to perform on him, and encouraging W to return to Montana – both advanced and verified the existence of the defendant’s purpose to persuade W to engage in sexual activity with him.  In addition, physical proximity or travel is not necessary to constitute a substantial step under § 2422 (b).

The 7th Circuit, in United States v. Gladish, 536 F.3d 646 (7th Cir. 2008), analyzed the substantial step issue differently than the 9th Circuit; in a way, indirectly criticizing the 9th Circuit’s decision in Goetzke. In Gladish, the defendant solicited “Abagail,” a law enforcement agent posing as a minor, to have sex with him.  Abagail agreed to have sex with him.  The defendant was arrested after discussing the possibility of traveling to meet Abagail in a few weeks, even though no arrangements were made.  The defendant was convicted of violating 18 U.S.C. § 1470, which prohibits “knowingly transferring or attempting to transfer obscene material to a person under 16”, and § 2422(b).

The government suggested that the substantial step “line” runs between “‘harmless banter’ and a conversation in which the defendant unmistakably proposes sex.”  The 7th Circuit, however, disagreed with the government’s position in Gladish stating that in all the cited cases and independent research, the conversations between defendant and victim contained more than the explicit sex talk that the government in Gladish quotes from the defendant’s chats with Abagail.

Surprised that the government prosecuted the defendant in Gladish under § 2422(b), the Court stated that “treating speech (even obscene speech) as the ‘substantial step’ would abolish any requirement of a substantial step.”  The Court continued, “this would imply that if X says to Y, ‘I’m planning to rob a bank,’ X has committed the crime of attempted bank robbery, even though X says such things often and never acts.”  Distinguishing Goetzke from Gladish, the Court noted that in Goetzke, the defendant and W had a prior relationship, “so his effort to lure the victim back to Montana for sex could not be thought idle chatter.”  Whereas in Gladish, the Court stated that while not “harmless banter,” the fact that the defendant said to a stranger whom he thought a young girl things like ‘I’ll suck your titties…I’ll kiss your inner thighs…I’ll let ya suck me and learn about how to do that,’ did not indicate that he would travel to do the these things to her in person, nor did he invite her to meet him.

In reversing Gladish, the court concluded that “the requirement of proving a substantial step serves to distinguish people who pose real threats from those who are all hot air,” and in the present case, “hot air is all the record shows.”

I think the 7th Circuit in Gladish brought out an important point to note regarding what constitutes a substantial step; however, I think the court’s analysis is lacking a bit.  Although determination as to whether or not a substantial step was taken is fact-dependent, based on the totality of the circumstances, I believe that a better defined “line” is definitely needed.


~ by natalielaw on December 5, 2010.

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