[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 29, 2010
No. 08-17106
JOHN LEY
CLERK
D. C. Docket No. 08-14028-CR-DLG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STANLEY G. ROTHENBERG,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Florida
(June 29, 2010)
Before BIRCH and MARCUS, Circuit Judges, and HODGES,* District Judge.
*Honorable Wm. Terrell Hodges, U. S. District Judge for the Middle District of Florida,
sitting by designation.
HODGES, District Judge:
This is a case involving offenses of sexual exploitation of a minor and
possession of child pornography. Stanley G. Rothenberg was charged in a two
count indictment. Count One alleged that Rothenberg, using a computer in
interstate commerce, knowingly attempted to induce an individual under 18 to
engage in criminal sexual activity in violation of 18 U.S.C. § 2422(b).1 Count
Two alleged that Rothenberg knowingly possessed one or more visual depictions,
transmitted in interstate commerce by computer, involving the use of a minor
engaging in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(4)(B).2
Rothenberg entered a plea of guilty to both offenses, without a plea
agreement, and now appeals from his sentence. We affirm.
1
18 U.S.C. § 2422(b) states:
Whoever, using . . . any . . . means of interstate . . . commerce, . . . knowingly
persuades, induces, entices or coerces any individual who has not attained the age
of 18 years, to engage in . . . 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.
2
18 U.S.C. § 2252(a)(4)(B) states:
Any person who—
knowingly possesses . . . [any] matter which contain[s] any visual depiction that
has been . . . transported using any means of . . . interstate . . . commerce, if – (i)
the producing of such visual depiction involves the use of a minor engaging in
sexually explicit conduct; and (ii) such visual depiction is of such conduct; shall
be punished [by fine or imprisonment for not more than 10 years or both].
2
I. The Sentence
In determining the applicable sentencing range under the Sentencing
Guidelines, the district court appropriately calculated the adjusted offense level of
each of the two counts, independently, using the grouping rules of U.S.S.G. § 3D
1.1 et seq. The court first determined that the adjusted offense level as to Count
One was 38. With respect to Count Two, the court arrived at an adjusted offense
level of 33 after applying, among others, the specific offense characteristic defined
in U.S.S.G. § 2G 2.2(b)(5) mandating an enhancement of five offense levels in
cases in which “the defendant engaged in a pattern of activity involving the sexual
abuse or exploitation of a minor.” This had the effect under U.S.S.G. § 3D 1.4 of
adding one offense level to the adjusted offense level of 38 applicable to Count
One, producing a combined offense level of 39. The district court next applied the
five level enhancement prescribed by U.S.S.G. § 4B 1.5(b)(1) in cases in which
“the defendant engaged in a pattern of activity involving prohibited sexual
conduct.” That resulted — after an aggregate three level reduction for acceptance
of responsibility — in a total offense level of 41 and, at Criminal History Category
I, a sentencing range of 324 to 405 months.
The district court then considered the sentencing factors enumerated in 18
U.S.C. § 3553 and imposed a sentence of 300 months or 25 years (300 months as
3
to Count One and 120 months as to Count Two, to run concurrently) to be
followed by a term of supervised release for life plus a fine and the prescribed
special assessment. The commitment term of 300 months represented a downward
departure under the Sentencing Guidelines of two offense levels which the district
court attributed to the defendant’s age (64) and his state of clinical depression over
many years.
Rothenberg objected to the enhancements under U.S.S.G. §§ 2G 2.2(b)(5)
and 4B 1.5(b)(1) resulting from the district court’s finding of a pattern of
prohibited sexual misconduct, and now raises the same issues on appeal.3
II. The Standard of Review
With respect to Sentencing Guidelines issues, this Court reviews “purely
legal questions de novo, a district court’s factual findings for clear error, and, in
most cases, a district court’s application of the guidelines to the facts with ‘due
3
Rothenberg also asserts another issue on appeal that we find unnecessary to discuss at
length. In the conversations underlying the charge made in Count One of the indictment,
Rothenberg was told that the fictitious minor was “mentally challenged,” and her reduced mental
capacity was mentioned in the Government’s sentencing memorandum to the district court. The
district court also uttered a passing reference to the fictitious child’s mental state during the
sentencing hearing (giving rise to Rothenberg’s claim of error that it was wrong for the district
court to consider it) but the child’s supposed mental handicap was not made the basis of any
specific Guidelines enhancement nor is it clear that the court then took the matter into account in
any way in formulating the sentence that was imposed. Indeed, the court departed downward
from the Guidelines sentence. Moreover, there was no objection to this episode during the
hearing. We find no error with respect to this issue, much less plain error.
4
deference.’” United States v. Rodriguez-Lopez, 363 F.3d 1134, 1136-37 (11th Cir.
2004) (quoting United States v. White, 335 F.3d 1314, 1317 (11th Cir. 2003)). See
also 18 U.S.C. § 3742(e). And the “due deference” standard is, itself, tantamount
to clear error review. See United States v. White, 335 F.3d 1314, 1318-19 (11th
Cir. 2003). For a finding to be clearly erroneous, this Court “must be left with a
definite and firm conviction that a mistake has been committed.” Rodriguez-
Lopez, 363 F.3d at 1137 (internal quotation marks omitted).
III. The Facts
The facts underlying the two charges in the indictment were stipulated to in
a written factual basis for the plea of guilty. An extensive discussion of the events
surrounding the offenses of conviction is unnecessary since they do not impact the
narrow sentencing issue on appeal. Suffice it to say, as to Count One of the
indictment, that in May, 2008, Rothenberg, a resident of Ft. Lauderdale,
communicated in an internet chat room with an undercover officer in Ft. Pierce
who held himself out as the father of an eleven year old daughter with whom he
was sexually intimate. Discussions ensued about the two men having sex with the
daughter, and arrangements were made for a preliminary face to face meeting in
Ft. Pierce. Rothenberg traveled to Ft. Pierce for that rendezvous where their illicit
sexual discussions continued and, ultimately, Rothenberg was arrested.
5
A search warrant was obtained and Rothenberg’s residence was searched.
The authorities found and seized Rothenberg’s laptop computer as well as
hundreds of printed computer chats, including Rothenberg’s chats with the
undercover officer. The computer contained approximately 90 images of child
pornography including five sexually explicit images of children under 12, and four
images depicting sadistic and masochistic acts. Rothenberg’s possession of these
images formed the basis for Count Two of the indictment.
IV. The Sentencing Issue
In determining that Rothenberg merited the pattern of activity enhancements
prescribed by U.S.S.G. §§ 2G 2.2(b)(5) and 4B 1.5(b)(1),4 the district court relied
upon transcripts of two separate chat room conversations Rothenberg had in the
past with other adults, printed copies of which were among the many found during
the search of his residence. One chat occurred on December 21, 2006, and the
other, with a different person, on June 1, 2007.5 In both of these conversations,
4
The application of the two pattern of activity enhancements does not amount to “double
counting” because they were applied, respectively, to two separate and distinct offenses
involving different conduct and different harms; and, in addition, the effect of the enhancement
as to Count Two was substantially tempered by the grouping of the two counts so that, in the end,
the Guidelines result as to Count Two culminated in an increase of only one offense level in the
overall calculation of the applicable sentencing range. This is not to say, however, that the
application of either enhancement was harmless since both served to materially increase the
Guidelines sentencing range.
5
Under the Application Notes following U.S.S.G. §§ 2G 2.2 and 4B 1.5, the term
“pattern of activity” in both sections is defined to include any two or more occasions of
6
Rothenberg actively coached and encouraged other adults in graphic detail about
how to sexually abuse minors in their care or under their influence.
In the chat that occurred on December 21, 2006, Rothenberg and a 19 year
old male were discussing having sex when the latter disclosed that he had a “lil
bro.” Rothenberg asked: “You ever try and do him?” “What’s his age?” The
answer given was 16, and Rothenberg declared: “HOT... he’s ready... go slow and
you can do it . . . start with lubing him up and relaxing him with just one finger . . .
after a while, insert two fingers . . . keep him relaxed . . . suck his cock as u insert
fingers . . . so he associates feeling good with fingers up his ass . . . begin slow . . .
it might take a couple of attempts . . . he’ll soon begin to enjoy it . . . especially
after a beer or two . . . allow him to feel no guilt . . . like it’s a normal thing . . .
which it is.”
In the chat that occurred on June 1, 2007, Rothenberg was having
conversation with a person who described himself as a 30 year old divorced male
with custody of two young sons, ages 8 and 11. First, with reference to the 11
year old child, Rothenberg declared: “[B]eautiful . . . are you training him? . . .
prohibited sexual conduct whether or not such conduct occurred during the course of the instant
offense and regardless of whether the conduct resulted in a conviction. See App. Note 1
following U.S.S.G. § 2G 2.2, and App. Note 3(B)(ii) following U.S.S.G. §4 B 1.5. Thus, either
of the prior chats relied upon by the district court, if either should be found to constitute an
offense involving prohibited sexual conduct, would be sufficient, when joined with the offense of
conviction, to warrant the finding of a “pattern” supporting the enhancements.
7
any sucking or jacking yet? . . . what a hot age . . . let him sleep with u . . . things
will happen naturally . . . put your hand on his and help him out . . . you’re so
lucky to have that . . . he’s ready . . . he wants u . . . oh believe me . . . you have the
best of the best . . . you can groom him any way u want . . . I think he’s basically
wanting it . . .just my guess . . .” It was at this point the father disclosed that he
also had an 8 year old son in his home. Rothenberg stated: “[O]h even nicer . . .
let him in the bed . . . kiss him and show him affection while you guide him . . .
take all guilt and shame away . . . its natural and its good . . . if you just gently
grasp his hand and show him how to sensually feel you . . . it would be great
beginning . . . and you, of course, can do him . . . all the while re-inforcing [sic]
that it is natural and good for dads and sons to bond like that . . . it’s the ultimate
in father/son bonding . . . you don’t need to say anything if u don’t want to . . . you
can just have all non-verbal activity . . . you can do so much without saying a word
. . .words will eventually come . . . take it slowly . . . he’s very eager to play with
you sexually . . . and that is so natural between dad and son . . .”6
Rothenberg contends that neither of these “chats,” without more, is legally
sufficient to constitute an attempt to violate 18 U.S.C. § 2422(b) or any other law
6
The chats as quoted in the text omit remarks and comments interspersed from time to
time by the other party to the conversations.
8
because neither chat rises to the level of a “substantial step” toward commission of
an offense. It follows, he argues, that neither of the chats can be considered as a
part of any pattern of illegal conduct triggering application of either U.S.S.G. § 2G
2.2(b)(5) or USGG § 4B 1.5(b)(1). More specifically, he asserts that mere talk or
speech unaccompanied by some other form of overt conduct cannot constitute a
substantial step necessary to an attempt to commit an offense; or, if speech alone
can amount to an attempt, that the talk or speech involved in this case is factually
insufficient to rise to that level.
V. Discussion
To establish an attempt as a crime, proof is required: (1) that the defendant
intended to commit the underlying criminal offense with the requisite mens rea, and
(2) that the defendant engaged in conduct which constituted a substantial step
toward the commission of that crime and which strongly corroborates the
defendant’s criminal intent. United States v. McDowell, 250 F.3d 1354, 1365 (11th
Cir. 2001); United States v. Yost, 479 F.3d 815,819 (11th Cir. 2007); United States
v. Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004). It is, however, the clearly
established law of the circuit that to prove an attempted exploitation offense under
18 U.S.C. § 2422(b), the Government does not have to prove the existence or
identity of a specific minor victim; a fictitious minor will suffice so long as the
9
defendant understood and believed that a minor was involved. United States v.
Root, 296 F.3d 1222, 1227 (11th Cir.2002); Murrell, 368 F.3d at 1289; United
States v. Lee, 603 F.3d 904, 913 (11th Cir. 2010). The absence of a real minor
victim is meaningless because the essence of the crime is the attempted enticement
of someone the defendant believes to be a minor, not actual engagement in sexual
activity with a minor. Murrell, 368 F.3d at 1286. Similarly, proof is not required
that the defendant must have communicated directly with a minor, either real or
fictitious; dealing with an adult intermediary for the purpose of attempting to entice
a minor into sexual activity with the defendant or some third person is sufficient to
constitute the offense. Lee, 603 F.3d at 913.
That leaves, therefore, the question presented here as to whether a sexually
solicitous communication by means of interstate commerce, without more, can ever
constitute a substantial step toward commission of an offense in violation of 18
U.S.C. § 2422(b) so as to complete the crime of attempt. That very issue was
recognized and left undecided in Murrell (see 368 F.3d at 1288 n. 3), but more
recent decisions in our circuit have supplied an affirmative answer. Yost, 479 F.3d
at 820, and Lee, 603 F.3d at 917.
In Yost the defendant had engaged in internet chat room conversations of a
sexually explicit and solicitous nature with an undercover agent posing as three
10
separate minor females. With respect to one of the three fictitious minors, the
extent of the defendant’s activity was limited to the chat room conversations; he
had not traveled to a meeting or taken any other overt action, in addition to the
conversations, to advance his predatory designs. 479 F.3d at 820. Citing United
States v. Bailey, 228 F.3d 637, 639-640 (6th Cir. 2000), and United States v.
Thomas, 410 F.3d 1235, 1246 (10th Cir. 2005),7 the Yost court concluded that
“[v]iewing the totality of Yost’s actions, we . . . conclude that Yost crossed the line
from mere ‘talk’ to inducement.” Id.
In Lee, a panel of this court affirmed a jury conviction for an attempted
violation of § 2422(b) based upon the defendant’s chat room and telephone
conversations with an undercover agent posing as the mother of two daughters,
ages 7 and 12. The court concluded that the jury could properly find the subject
conversations to be a substantial step sufficient to support the attempt conviction.
603 F.3d at 917-18.
We reach the same conclusion in this case. Whether a given activity or
course of conduct amounts to a substantial step toward the commission of a crime
7
The Sixth Circuit in Bailey and the Tenth Circuit in Thomas both held that sexual
“banter” can cross the line and become criminal inducement or enticement in violation of §
2422(b), and that the statute is not unconstitutional when so applied. Cf., United States v. Panfil,
338 F.3d 1299, 1301 (11th Cir. 2003). “[T]he Defendant simply does not have a First
Amendment right to attempt to persuade minors to engage in illegal sex acts.” Bailey, 228 F.3d
at 639.
11
is a question of fact8 that will vary from case to case depending not only upon the
activity or course of conduct itself, but also upon the nature of the underlying
offense to which the attempt is tied. Here, the very nature of the underlying
offense — persuading, inducing or enticing engagement in unlawful sexual activity
— necessarily contemplates oral or written communications as the principal if not
the exclusive means of committing the offense; and, ultimately, an individual
evaluation by the fact finder of the defendant’s intent as disclosed by his words or
speech is necessary in every prosecution under § 2422(b). As we said in Lee,
our aim is not to decide whether [the defendant’s]
conduct is at least as ‘criminal’ as the conduct of others
convicted under section 2422(b). Each of our precedents
holds no more than that a reasonable jury could have
found that the defendant at issue violated section 2422(b).
Not surprisingly, none guesses at or purports to have
identified the minimum conduct that section 2422(b)
proscribes.
603 F.3d at 916. In this case, Rothenberg’s chats were specific instructions to
adults with influence over young children; these graphic guides to sexual
exploitation showed the adults both how, physically, to molest the children and
8
Special Instruction 11, Attempt(s), Pattern Jury Instructions (Eleventh Circuit, 2003)
states:
A “substantial step” means some important action leading to the commission of a
crime as distinguished from some inconsequential or unimportant act. It must be
something beyond mere preparation; it must be an act which, unless frustrated by
some condition or event, would have resulted, in the ordinary and likely course of
things, in the commission of the crime being attempted.
12
how, emotionally, to persuade the children to comply with the abuse. Accordingly,
the chats constituted “important action[s] leading to the commission” of inducing
particular children to engage in illegal sexual activity.
We discern no clear error in the district court’s finding that Rothenberg’s
chats crossed the line between sexual banter and criminal persuasion, inducement
or enticement, and that he engaged in a pattern of activity involving prohibited
sexual conduct justifying application of the enhancements provided for in U.S.S.G.
§§ 2G 2.2(b)(5) and 4B 1.5(b)(1). We further conclude that the sentence was both
procedurally and substantively reasonable.
Affirmed.
13