United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-3536
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Southern
* District of Iowa.
James William Young, *
*
Appellant. *
___________
Submitted: April 14, 2010
Filed: July 19, 2010
___________
Before WOLLMAN, MURPHY, and SHEPHERD, Circuit Judges.
___________
SHEPHERD, Circuit Judge.
Following trial, a jury convicted James William Young of one count of
attempting to entice a minor to engage in sexual activity, in violation of 18 U.S.C. §
2422(b). The district court1 sentenced Young to 160 months imprisonment, a $100
special assessment, and 10 years supervised release. Young appeals, challenging his
conviction, the refusal of his proffered jury instructions on abandonment and
entrapment, and his sentencing enhancements for misrepresentation of identity and
obstruction of justice. See United States Sentencing Commission, Guidelines Manual,
§§2G1.3(b)(2)(A), 3C1.1. For the following reasons, we affirm.
1
The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.
I.
On November 4, 2008, at 3:50 p.m., Young, a 33-year-old married father of
three, entered an adult online chat room entitled “romance, adult,” on Yahoo! Instant
Messenger. Young utilized the screen name “Funminqc” and sent an instant message
to an individual with the screen name “Erj94e.” The person at “Erj94e” responded
and disclosed that her name was “Emily” and that she was a 14-year-old female.
Unbeknownst to Young, in reality “Emily” was undercover Dewitt, Iowa Police
Officer Shai Cruciani of the Internet Crimes Against Children Task Force.2
Emily and Young chatted for approximately one hour. After Emily disclosed
that she disliked band, Young told Emily that he worked as an engineer for Alliant
Energy, although, in reality, he was a band director at a high school in Clinton, Iowa.
Young asked Emily if she had a boyfriend and she responded that she did not. Young
also told Emily that he was not married, discussed the possibility of a future meeting
and provided Emily with his cell phone number. Young sent Emily a picture of
himself, and Emily sent Young a photograph that had been digitally modified to
appear to be of a 14-year-old female.
Young and Emily chatted online and exchanged emails on several occasions
between November 4 and November 13, 2008. During their discussions, Young
continued “grooming”3 Emily by never indicating that he was a band director and
2
“The Internet Crimes Against Children Task Force involves investigating those
offenses that include production of child pornography, possession of, trading of, and
investigating individuals that utilize the Internet to have sexual contact with minor
persons.” (Detention Hr’g Tr. 2-3.)
3
“Grooming” is a term utilized by the Internet Crimes Against Children Task
Force which refers to “a way that subjects, adult subjects [converse] with persons on
the Internet that are under the age of 18. For example, . . . the subject might talk about
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discussing topics he knew would be of interest to her. As the chats progressed, they
became more sexually explicit in nature, including references to sexual acts the two
might perform with each other. Specifically, Young inquired if Emily had “ever done
oral . . . ever had a guy lick you?”4 (Trial Tr. vol. II, 147.) When she responded “no,”
Young stated, “K, well may have to give you that experience.” (Id.)
Emily eventually agreed to meet Young in person. Emily told Young that she
had seen a Super 8 Motel close to Westbrook Park in DeWitt, Iowa. Young offered
to obtain a room at the Super 8. Young warned Emily to keep their relationship and
planned meeting private. Young specifically told Emily not to tell anyone because
“[he] would be locked up” for “being with a minor.” (Id. at 149.)
During one of the final online conversations between Emily and Young, the
discussion progressed to include graphic details of an anticipated sexual encounter,
with Young indicating that he wanted to “kiss, touch, and lick” Emily and suggesting
that the two have sexual intercourse at the motel. (Id. at 155.) Young and Emily
exchanged emails to arrange the details of their meeting, which was to take place on
November 13, 2008. Emily suggested that Young pick her up at Westbrook Park, but
the two eventually decided that she would walk to the Super 8 Motel. Emily indicated
that she would be dressed in jeans and a pink coat. Young planned to arrive at
approximately 3:00 p.m., check into a room, and leave a note containing Emily’s
name and his room number on the windshield of his car.
things that the . . . person under age 18 would be interested in such as what they like
to do with their friends, where they like to eat, what they like to do for fun . . . . The
purpose of the grooming is to build a trusting relationship between the two parties.”
(Trial Tr. vol. II, 132.)
4
We have avoided making any edits that would alter the meaning of the
electronic communication; thus, the quoted language includes grammatical and
typographical errors.
-3-
On November 13, 2008, Young used his personal credit card to reserve a room
at the Super 8 Motel in Dewitt, Iowa. Young then drove to the Super 8 followed by
several undercover police officers. Upon his arrival at the motel at approximately
3:10 p.m., he attempted to reserve a room at the front desk, however his credit card
was declined. Young told the motel clerk that he was going to withdraw cash and then
return. Young next drove to a U.S. Bank Automated Teller Machine (“ATM”), where
Young appeared to attempt a cash withdrawal. Young’s account, however, had
insufficient funds and Young called the Super 8 clerk and cancelled his reservation
due to his inability to secure any payment.
Young next drove to a middle school and high school near the Super 8. Young
traveled back and forth between the schools and motel several times and circled the
parking lots. Young eventually drove to Westbrook Park. Officer Tamii Gordy,
another undercover officer with the Dewitt Police Department, was standing in the
park dressed in jeans and a pink coat. When Young saw the undercover officer, he
began honking and yelling. Officers then arrested Young.
The officers gave Young his Miranda5 warnings and Young agreed to an
interview. This interview occurred prior to Young’s discovery that “Emily” was not,
in fact, a 14-year-old female. During the interview, Young indicated that he had
“feelings that [he was] not proud of for the last 15 years” and that he had been online
chatting with a 14-year-old girl named Emily. (Id. at 169.) Young indicated that the
chat topics included, “sex once, playing cards, eating pizza, that they were supposed
to meet in the hotel room for four hours, possibly take a bath because she liked to take
baths, [and] they had talked about touching and kissing and oral.” (Id. at 137-38.)
When asked whether a sexual encounter would have occurred between himself and
Emily in the hotel room, Young responded that “he didn’t know if it would [have
been] 100 percent innocent while in the room.” (Id. at 138.) During the search
5
Miranda v. Arizona, 384 U.S. 436 (1966).
-4-
incident to Young’s arrest, officers discovered a condom on Young’s person. After
obtaining a search warrant for Young’s car, officers recovered a note with the name
“Emily” written on it and a bottle of bubble bath.
On December 12, 2008, a grand jury returned an indictment charging Young
with attempted enticement of a minor to engage in sexual activities, in violation of 18
U.S.C. § 2422(b). At trial, several officers involved in the investigation testified about
surveillance videos at the Super 8 and electronic evidence they had obtained from
Young’s online chats with Emily. The government also introduced evidence of
sexually explicit online chats between Young and other females under the age of 18,
in some of which Young attempted to arrange meetings with other minors.
Young pled not guilty and stated that he had been “tempted” by Emily, that his
online conversations were merely fantasies, and that he had not intended to go through
with the planned sexual encounter, but had traveled to the Super 8 out of concern for
Emily’s safety. Young testified that he had used a “maxed out credit card” because
he had never expected to obtain a room. (Trial Tr. vol. III, 317-18.) He also stated
that he had driven to the ATM to watch for Emily and not to withdraw money.
Finally, he testified that, after cancelling the reserved room, he had driven around in
search of Emily only to ensure that she was safe.
Young requested that the jury be instructed on his abandonment and entrapment
defenses. Young’s proffered abandonment instruction read:
One of the issues in this case is whether the defendant abandoned his
attempt. If the defendant abandoned his attempt he must be found not
guilty. The government has the burden of proving beyond a reasonable
doubt that the defendant did not abandon his attempt. When the actor’s
conduct would otherwise constitute an attempt it is an affirmative
defense that he abandoned his effort to commit the crime or otherwise
prevented its commission under the circumstances manifesting a
complete and voluntary renunciation of his criminal purpose.
-5-
Renunciation of criminal purpose is not voluntary if it is motivated, in
whole or in part, by circumstances, not present or apparent at the
inception of the actor’s course of conduct, that increase the probability
of detection or apprehension or that make more difficult the
accomplishment of the criminal purpose. Renunciation is not complete
if it is motivated by a decision to postpone the criminal conduct until a
more advantageous time or to transfer the criminal effort to another by
similar objective or victim.
(Appellant’s Br. Add. 8-9 (citing 8th Cir. Model Jury Instructions § 9.05 (2007);6
Model Penal Code § 5.01 (2001); United States v. Dworken, 855 F.2d 12, 20 (1st Cir.
1988)).) Young’s proffered entrapment instruction stated:
One of the issues in this case is whether the defendant was entrapped.
If the defendant was entrapped, he must be found not guilty. The
government has the burden of proving beyond a reasonable doubt that
the defendant was not entrapped. If the defendant before contact with
[the officers] did have an intent or disposition to commit the crime
charged . . . then he was not entrapped, even though [the officer]
provided a favorable opportunity to commit the crime or made
committing the crime easier or even participated in acts essential to the
crime.
(Id. at 7 (quoting 8th Cir. Model Jury Instructions § 9.01 (2007)).) The district court
refused both instructions, finding that they were not supported by the evidence.
On April 15, 2009, a jury found Young guilty of enticement of a minor to
engage in illicit sexual activity. Young moved for a new trial, claiming that the
district court improperly refused his proposed abandonment and entrapment
6
Section 9.05 does not contain a specific model instruction, however, the notes
to section 9.05 state: “[N]o general instruction is provided because each such
instruction must be drafted in accord with the particular issues of the case.” 8th Cir.
Model Jury Instructions § 9.05, Notes on Use (2007).
-6-
instructions. The district court denied the motion, stating that “the requested
[abandonment] instruction would have permitted the jury to acquit the defendant after
finding that he completed the crime” as Young “had already taken several substantial
steps, thereby completing the crime of attempt.” (District Ct. Order 6-7.) As to the
entrapment instruction, the court explained, “The defendant’s theory of entrapment
was not supported by the evidence presented at trial.” (Id. at 8.)
At Young’s sentencing hearing, the district court increased Young’s offense
level by two for misrepresentation of identity, pursuant to USSG §2G1.3(b)(2)(A).
The court explained,
Here, it is not speculative to suggest that a child would be more alerted,
more hesitant to discuss and agree to sexual behavior with an adult if the
child knew that the person was a teacher . . . someone married with
children . . . someone who’s directly involved by their occupation or
avocation in serving and particularly protecting children.
(Sentencing Hr’g Tr. 21.) The court also applied a two-level enhancement for
obstruction of justice, pursuant to USSG §3C1.1, stating, “I find by a preponderance
of the evidence that [Young’s] testimony [proclaiming his innocence] was
intentionally false.” (Id. at 21-22.) Based on these enhancements, Young’s advisory
Guidelines range was 151 to 188 months imprisonment. The district court sentenced
Young to 160 months imprisonment followed by 10 years of supervised release.
II.
On appeal, Young challenges: (1) the sufficiency of the evidence in support of
his conviction; (2) the district court’s refusal of his proffered abandonment and
entrapment jury instructions; and (3) his sentence enhancements for misrepresentation
of identity and obstruction of justice.
-7-
A.
Young first challenges the sufficiency of the evidence, claiming that he was
merely in the “preparation” stages of the crime and several steps remained before he
would have completed an attempt. We review the sufficiency of the evidence de
novo, viewing the evidence in the light most favorable to the jury’s verdict. United
States v. Molsbarger, 551 F.3d 809, 812 (8th Cir. 2009). The jury’s verdict will be
upheld if there is any interpretation of the evidence that could lead a reasonable jury
to find the defendant guilty beyond a reasonable doubt. Id.
In order to convict a defendant for enticement of a minor to engage in sexual
activities,7 the government must prove beyond a reasonable doubt that the defendant:
(1) “used a facility of interstate commerce, such as the internet or the telephone
system;” (2) “knowingly used the facility of interstate commerce with the intent to
persuade or entice a person to engage in illegal sexual activity;” and (3) “believed that
the person he sought to persuade or entice was under the age of eighteen.” See United
States v. Pierson, 544 F.3d 933, 939 (8th Cir. 2008), cert. denied, 129 S. Ct. 2431
(2009). “The elements of attempt are (1) intent to commit the predicate offense, and
(2) conduct that is a substantial step toward its commission.” United States v.
7
Specifically, 18 U.S.C. § 2422(b) reads:
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.
18 U.S.C. § 2422(b).
-8-
Spurlock, 495 F.3d 1011, 1014 (8th Cir. 2007) (citing United States v. Blue Bird, 372
F.3d 989, 993 (8th Cir. 2004)). An attempt exists when a defendant’s actions go
“beyond mere preparation; [are] necessary to the consummation of the crime; and . .
. strongly corroborate [the defendant’s] criminal intent to [commit the predicate
offense].” Id.
In attempted enticement of a minor cases, the defendant’s intent can be inferred
when the defendant has online conversations of a sexual nature with a minor. See
United States v. Patten, 397 F.3d 1100, 1102-03 (8th Cir. 2005) (“[W]e have no
difficulty concluding that the transcripts of the Internet chats and the telephone
conversation are sufficient evidence to permit a reasonable jury to find that Patten
intended to persuade “Sarah” to engage in sexual activity.”). The evidence in the
record overwhelmingly supports Young’s intent. Young’s various internet chats with
Emily are consistent with his intent to entice her to meet him and engage in sexual
activities, as he engaged in several discussions with Emily which involved sex,
although he knew that Emily was only 14-years-old. See Patten, 397 F.3d at 1102-03.
The condom, note with the name “Emily,” and bottle of bubble bath discovered by
officers further support Young’s intent to engage in the crime as they were specifically
mentioned during the online conversations. Additionally, even after he had been
arrested, Young confessed to officers that he had planned a meeting with Emily on the
internet and indicated that he was not sure that “it would [have been] 100 percent
innocent while in the room.” (Trial Tr. vol. II, at 138.)
Whether Young took a substantial step towards completion of the crime merits
a more detailed analysis. A substantial step generally exists when a defendant takes
actions “necessary to the consummation of the crime” that were of “such a nature that
a reasonable observer, viewing [the actions] in context could conclude . . . that [the
actions were] undertaken in accordance with a design to” commit the actual offense.
United States v. Mims, 812 F.2d 1068, 1077 (8th Cir. 1987) (quotation omitted).
Indeed, we have previously held that a defendant took substantial steps where he
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arranged to meet the minor at a certain time or place and traveled to the designated
meeting location. See United States v. Myers, 575 F.3d 801, 809 (8th Cir. 2009)
(finding that the defendant took a substantial step towards commission of the crime
when he drove “two hours to meet [the minor for a sexual liaison] while she was
purportedly home alone”); Patten, 397 F.3d at 1104 (“There is clear authority for the
government’s position that Patten’s act of driving to the arranged meeting place in
West Fargo was relevant evidence of a substantial step.”); United States v. Dickson,
149 F. App’x 543, 544 (8th Cir. 2005) (unpublished per curiam) (finding a substantial
step when the defendant “initiated the conversation with [a minor], tried to persuade
her to engage in sexual activity, arranged to meet her for that purpose, and was
waiting for her at the arranged time and place when he was arrested”).
Here, Young used his personal credit card to reserve the motel, traveled to the
motel, attempted to charge the room to his credit card upon arrival at the motel, and
drove to an ATM after his credit card was declined, all prior to cancelling the motel
room. Moreover, Young did not leave after cancelling the room; instead, he drove
around the area and eventually traveled to the park Emily had mentioned in a prior
online chat. All of these acts establish that Young took not just one, but several
substantial steps towards committing the crime of enticement of a minor under our
case law. See Myers, 575 F.3d at 809; Patten, 397 F.3d at 1104. We therefore
conclude that the evidence supports Young’s jury conviction for attempted enticement
of a minor as a reasonable jury could find Young guilty beyond a reasonable doubt.
See Molsbarger, 551 F.3d at 812.
B.
Young next challenges the district court’s refusal of his proffered jury
instructions on the defenses of entrapment and abandonment. We review the district
court’s denial of a proffered legal defense de novo. See United States v. Buttrick, 432
F.3d 373, 376 (1st Cir. 2005) (“We review a properly preserved objection to the
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failure to give a requested jury instruction de novo.”); United States v. Benning, 248
F.3d 772, 775 (8th Cir. 2001) (“We review the district court’s denial of the defense
of entrapment by estoppel de novo, because it is a question of law.”); see also United
States v. Santiago-Godinez, 12 F.3d 722, 726 (7th Cir. 1993) (“The legal sufficiency
of a proffered defense is a question of law and therefore is reviewed de novo.”). “To
the extent that the district court’s legal conclusion regarding whether [Young’s]
defense theory accurately reflected the law was based on factual findings, we review
for clear error.” Benning, 248 F.3d at 775. We note that in United States v. Kendrick,
423 F.3d 803 (8th Cir. 2005), we reviewed the refusal of an entrapment instruction
for abuse of discretion. See id. at 807. However, in support of this standard of
review, Kendrick cites United States v. Williams, 109 F.3d 502 (8th Cir. 1997), which
noted, “[w]e review a district court’s formulation of jury instructions for an abuse of
discretion.” Id. at 508 (emphasis added). In Williams, the defendant did not argue
that his proffered legal defense had been denied, yet challenged the district court’s
submission of a modified instruction because it “was confusing and tended to
emphasize the government’s version of the facts.” Id. Therefore, although district
courts exercise wide discretion in formulating jury instructions, see id., when the
refusal of a proffered instruction simultaneously denies a legal defense, the correct
standard of review is de novo, see Benning, 248 F.3d at 775. Here, Young argues
that the district court erred in failing to permit him to submit his abandonment and
entrapment instructions to the jury. Therefore, the refusal of his jury instructions was,
in essence, the denial of Young’s defenses and a de novo review is proper.
1. Abandonment Instruction
In his proposed abandonment instruction, Young cited the Model Penal Code,
in which the provisions concerning criminal attempt include references to the
affirmative defense of voluntary renunciation. See Model Penal Code § 5.01(4). The
code section provides that the defense applies only when the defendant:
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abandon[s] his effort to commit the crime or otherwise prevent[s] its
commission, under circumstances manifesting a complete and voluntary
renunciation of his criminal purpose . . . . [R]enunciation of criminal
purpose is not voluntary if it is motivated, in whole or in part, by
circumstances, not present or apparent at the inception of the actor’s
course of conduct, that increase the probability of detection or
apprehension or that make more difficult the accomplishment of the
criminal purpose. Renunciation is not complete if it is motivated by a
decision to postpone the criminal conduct until a more advantageous
time or to transfer the criminal effort to another but similar objective or
victim.
Id. The Model Penal Code lists two considerations for recognizing such a defense in
attempt crimes: (1) “renunciation of criminal purpose tends to negative
dangerousness,” and (2) “to provide actors with a motive for desisting from their
criminal designs, thereby diminishing the risk that the substantive crime will be
committed.” Model Penal Code § 5.01(4) cmt. 8 (Official Draft and Revised
Comments 1985).
This issue of whether a defendant is entitled to an abandonment defense once
an attempt has been completed, i.e., the defendant has the requisite intent and has
completed a substantial step towards the crime, is an issue of first impression in our
circuit. While we have stated, “[i]n an attempt case, abandonment precludes liability,”
United States v. Robinson, 217 F.3d 560, 564 n.3 (8th Cir. 2000), we relied upon
United States v. Joyce, 693 F.2d 838 (8th Cir. 1982) in making that comment. Joyce,
however, involved abandonment of an attempt prior to the completion of the attempt.
Id. at 841. We hold today that a defendant cannot abandon an attempt once it has been
completed.8
8
Young cites United States v. Dworken, 855 F.2d 12 (1st Cir. 1988), in support
of his theory; however, Dworken is not binding on our court and, to a certain extent,
supports the case against Young. Through dicta, Dworken avoids the issue at hand
by “assuming arguendo that [the abandonment defense] might in some circumstances”
-12-
We emphasize that all of our sister circuits that have faced this issue have either
held that a defendant cannot abandon a completed attempt or have alluded to such a
determination. See United States v. Crowley, 318 F.3d 401, 410-11 (2d Cir. 2003)
(not formally addressing the issue but noting, “[t]he only other circuits that have
formally addressed the question have rejected the defense as a matter of federal law”);
United States v. Shelton, 30 F.3d 702, 706 (6th Cir. 1994) (“[W]ithdrawal,
abandonment and renunciation, however characterized, do not provide a defense to
an attempt crime.”); United States v. Bussey, 507 F.2d 1096, 1098 (9th Cir. 1974) (“A
voluntary abandonment of an attempt which has proceeded well beyond preparation
as here, will not bar a conviction for the attempt.”); United States v. Wales, 127 Fed.
App’x 424, 432 (10th Cir. 2004) (unpublished) (“[N]either this circuit nor any other
circuit to have addressed the issue has held that abandonment or renunciation may
constitute a defense to the completed crime of attempt.”).
Specifically, in Shelton, the Sixth Circuit rejected the Model Penal Code’s
approach and held that “withdrawal, abandonment and renunciation, however
characterized, do not provide a defense to an attempt crime.” 30 F.3d at 706. The
court explained:
As noted, the attempt crime is complete with proof of intent together
with acts constituting a substantial step toward commission of the
substantive offense. When a defendant withdraws prior to forming the
necessary intent or taking a substantial step toward the commission of
apply to the crime of attempt. 855 F.2d at 20. Instead of discussing the particular
circumstances in which an attempt crime might be abandoned, Dworken focused on
whether the abandonment itself was legally sufficient, a different topic than our issue
at hand. See id. at 20-22. Dworken further noted that, “[t]he theory of abandonment
is that certain behavior indicates a renunciation of criminal intent, such that the
dangerousness manifested by the criminal attempt is no longer viable.” Id. at 20.
Here, “the dangerousness manifested” by Young’s attempt was still viable because he
had completed the crime and had therefore not renounced his criminal intent. See id.
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the offense, the essential elements of the crime cannot be proved. At this
point, the question whether a defendant has withdrawn is synonymous
with whether he has committed the offense. After a defendant has
evidenced the necessary intent and has committed an act constituting a
substantial step toward the commission of the offense, he has committed
the crime of attempt, and can withdraw only from the commission of the
substantive offense. We are not persuaded that the availability of a
withdrawal defense would provide an incentive or motive to desist from
the commission of an offense, especially since the success of the defense
presupposes a criminal trial at which the issue would be submitted to the
jury for decision. A remote chance of acquittal would appear to have an
even more remote chance of deterring conduct. We recognize, of course,
that attempt crimes pose unique issues. However, the interest of
defendants in not being convicted for mere thoughts, desires or motives
is adequately addressed by the government’s burden of proving that the
defendant took a substantial step toward the commission of the
substantive offense.
Id. (quotation omitted).
We have previously held that completed crimes, other than attempt, cannot be
abandoned. See United States v. Ball, 22 F.3d 197 (8th Cir. 1994). Specifically, in
Ball, defendants who had been convicted of entering a bank with intent to commit
robbery, in violation of 18 U.S.C. § 2113(a), argued that the district court erred by
refusing “an instruction on a defense theory: that, even had the defendants entered the
bank with intent to commit a robbery, they subsequently abandoned or withdrew from
their intention when they left the bank without pointing a gun or announcing a
stick-up.” Id. at 199. We held that the abandonment defense did not apply because
the crime had been completed once the defendants entered the bank. Id.
Because our circuit has already determined that the abandonment defense: (1)
can apply to uncompleted attempt crimes, see Joyce, 693 F.2d at 841-42, and (2) has
been rejected as a defense to completed crimes other than attempt, see Ball, 22 F.3d
at 199, logically flowing from this analysis is the conclusion that, when a defendant
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has completed the crime of attempt; i.e., has the requisite intent and has taken a
substantial step towards completion of the crime, he cannot successfully abandon the
attempt because the crime itself has already been completed. We therefore adopt the
Sixth Circuit’s approach in Shelton, specifically reject the Model Penal Code
approach, and hold that the defense of abandonment is not warranted once a defendant
completes the crime of attempt. We acknowledge, that “[a]fter a defendant has
evidenced the necessary intent and has committed an act constituting a substantial step
toward the commission of the offense, he has committed the crime of attempt, and can
withdraw only from the commission of the substantive offense,” not the attempt of
such offense. Shelton, 30 F.3d at 706.
As discussed above, Young completed his attempt because he had the requisite
intent and took a substantial step towards completion of the enticement crime, all
supported by the evidence discovered in his car, his travel to the hotel and attempt to
check in, and his search for Emily once he could not obtain the hotel room. Because
Young completed “the essential elements” of his attempt, Shelton, 30 F.3d at 706, he
cannot now claim that he abandoned that plan. We therefore conclude that the district
court committed no error in its decision to refuse Young’s proffered abandonment
instruction.
2. Entrapment Instruction
Young also argues that the district court erred in refusing his proffered
entrapment instruction. Because it is an affirmative defense, entrapment is a question
of fact and generally decided by a jury. Kendrick, 423 F.3d at 807. However, a
defendant is entitled to an entrapment instruction only where “there is sufficient
evidence from which a reasonable jury could find entrapment.” Mathews v. United
States, 485 U.S. 58, 62 (1988). “[A] valid entrapment defense has two related
elements: government inducement of the crime, and a lack of predisposition on the
part of the defendant to engage in the criminal conduct.” Id. at 63.
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Therefore, to warrant an entrapment instruction, a defendant must first present
evidence that the government induced the criminal conduct. See Jacobson v. United
States, 503 U.S. 540, 553 (1992). Inducement exists when the government “implanted
the criminal design” in the defendant’s mind. United States v. Eldeeb, 20 F.3d 841,
843 (8th Cir. 1994). Some of the inducement factors relevant to enticement of a minor
to engage in a sexual activity include: “whether the government made the initial
contact; . . . whether the government introduced the topics of sex and meeting in
person; and the extent to which the government influenced [the defendant’s] behavior
by portraying [minors] as sexually precocious teenagers.” Myers, 575 F.3d at 806-07
(holding inducement did not occur when “the government did not threaten, coerce, or
psychologically manipulate” the defendant).
Here, although the undercover officer posing as Emily alluded to sex in some
of the online chats, Young initially contacted Emily, and it was Young who initiated
the majority of sexual discussions, supporting the conclusion that he was not induced
by the government. In particular, Young was the one who brought up the topic of a
sexual encounter at the Super 8 Motel and who reserved a room. Additionally,
although Emily pretended to be receptive to Young’s sexual suggestions, and was
arguably portrayed as a “sexually precocious teenager[],” Myers, 575 F.3d at 806, the
government did not “implant[] the criminal design” in Young’s mind, Eldeeb, 20 F.3d
at 843, nor did it “threaten, coerce, or psychologically manipulate” him, Myers, 575
F.3d at 806. Therefore, the district court did not err in refusing to instruct the jury on
an entrapment defense. See Kendrick, 423 F.3d at 807 (“If the defendant exhibits any
predisposition to engage in the criminal conduct, the district court need not instruct
the jury on entrapment.” (quotation omitted)); see also United States v. Neal, 990 F.2d
355, 358 (8th Cir. 1993) (“A district court may refuse to submit an entrapment
instruction when the defendant exhibited a disposition to engage in the criminal
activity with which he was charged because if predisposition exists, then there is not
sufficient evidence from which a reasonable jury could find entrapment.” (quotation
omitted)).
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Moreover, even had Young established that the government induced his
criminal conduct, Young was predisposed to commit the crime. Once government
inducement is established by the defendant, the burden shifts to the government to
demonstrate beyond a reasonable doubt that the defendant was predisposed to commit
the crime. Kendrick, 423 F.3d at 807. The predisposition element “focuses upon
whether the defendant was an ‘unwary innocent’ or, instead, an ‘unwary criminal’
who ‘readily availed himself of the opportunity to perpetrate the crime.’” Myers, 575
F.3d at 805 (quoting Mathews, 485 U.S. at 63). Specifically, in Myers we found that
a defendant was predisposed to commit the crime of enticement of a minor to engage
in sexual activity where:
[The defendant] met [an undercover agent posing as a minor] in a
romance chat room and quickly learned that she was fourteen years old.
Nevertheless, he showed no reluctance to engage in sexually explicit
conversation and asked about her undergarments. [The defendant]
initiated the second chat—in which [an undercover agent posing as a
minor] first appeared under the pseudonym “Kim”—raised the subject
of a physical meeting, and steered the discussion toward sex. Kim
subsequently introduced the subject of her age on a number of occasions,
but [the defendant] did not appear to give the issue any serious
consideration.
Id. at 808.
The evidence of Young’s numerous other internet chats, during which he
attempted to arrange meetings with minors for sexual encounters, clearly show his
predisposition to commit this crime. See id. Moreover, Young quickly responded to
Emily’s apparent willingness to engage in sexual activities and it did not take a great
deal of further effort from the undercover officers for Young to arrange the meeting.
See Jacobson, 503 U.S. at 550 (“Had the agents in this case simply offered petitioner
the opportunity to [commit the crime], and petitioner . . . had promptly availed himself
of this criminal opportunity, it is unlikely that his entrapment defense would have
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warranted a jury instruction.”); Myers, 575 F.3d at 805 (holding that “a ready response
to minimal inducement indicates criminal predisposition.”). Because Young has not
presented “sufficient evidence from which a reasonable jury could find entrapment,”
the district court did not abuse its discretion in refusing Young’s entrapment
instruction. Mathews, 485 U.S. at 62.
C.
Young’s final arguments challenge the district court’s sentence enhancements
for misrepresentation of identity and obstruction of justice. “We review interpretation
of the Sentencing Guidelines de novo and a district court’s application of the
Guidelines to the facts for clear error.” United States v. Rutherford, 599 F.3d 817,
820 (8th Cir. 2010).
1. Misrepresentation of Identity
The Guidelines instruct the district court to apply a two-level enhancement to
a defendant’s offense level “[i]f the offense involved the knowing misrepresentation
of a participant’s identity to persuade, induce, entice, coerce, or facilitate the travel of,
a minor to engage in prohibited sexually conduct.” USSG §2G1.3(b)(2)(A). The
comments to section 2G1.3(b)(2)(A) clearly state that “[t]he misrepresentation to
which the enhancement . . . may apply includes misrepresentation of a participant’s
name, age, occupation, gender, or status as long as the misrepresentation was made
with the” requisite intent. Id. §2G1.3, comment. (n.3(A)) (emphasis added).
Although we have not yet interpreted this exact sentencing provision, in
discussing a similar enhancement for misrepresenting identity in the context of a
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conviction for possession of child pornography, USSG §2G2.1(b)(6)(A),9 we have
held that the enhancement is warranted when the misrepresentation is “instrumental
in getting the victims to engage in sexually explicit conduct.” United States v. Starr,
533 F.3d 985, 1002 (8th Cir. 2008) (finding an enhancement based on
misrepresentation of age was proper under USSG §2G2.1(b)(6)(A)).
The Ninth Circuit is the only circuit that has interpreted section 2G1.3(b)(2)(A)
in detail. See United States v. Holt, 510 F.3d 1007 (9th Cir. 2007). Holt held that a
defendant who misrepresented his age over a six-month period of time was subject to
the enhancement, because “[t]he district court reasonably could have concluded that
[the defendant] was misrepresenting his identity in a prolonged effort to groom what
he though was a thirteen-year-old girl for illicit sexual contact.” Id. at 1010-11.
Young argues that his misrepresentation was not meant to induce Emily because it
occurred over a shorter period than in Holt. However, the Guidelines do not make a
temporal distinction. Young told Emily that he worked as an engineer after Emily
stated that she disliked band. Young also told Emily that he was not married, although
in reality, he had a wife and three children. Therefore, the two-level enhancement for
misrepresentation of identity was appropriate.
9
The Guidelines specifically state:
If, for the purpose of producing sexually explicit material or for
the purpose of transmitting such material live, the offense
involved . . . the knowing misrepresentation of a participant’s
identity to persuade, induce, entice, coerce, or facilitate the travel
of, a minor to engage sexually explicit conduct . . . increase [the
Base Offense Level by] 2 levels.
USSG §2G2.1(b)(6)(A).
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2. Obstruction of Justice
A defendant’s sentence may be increased by two levels,
[i]f the defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice with respect to the
investigation, prosecution, or sentencing of the instant offense of
conviction, and the obstructive conduct related to the defendant’s offense
of conviction and any relevant conduct; or a closely related offense.
USSG §3C1.1.
We have repeatedly affirmed obstruction-of-justice enhancements,
despite the absence of specific findings on the elements of perjury, when
the evidence of the defendant’s willfulness was unequivocal and the
record left no doubt that the defendant’s false testimony at trial was not
the result of confusion, mistake, or faulty memory.
United States v. Vickers, 528 F.3d 1116, 1122 (8th Cir. 2008) (quotation omitted).
Here, Young testified that he did not travel to the motel to commit the crime,
but that he merely traveled to the location to ensure that Emily arrived home safely.
He specifically stated that his online chats were merely a “fantasy” to see how much
Emily would discuss online. However, the evidence overwhelmingly indicates
otherwise. Young drove to the hotel, attempted to book a room, and drove around the
surrounding area when he did not see her. Additionally, a condom and bubble bath
were found in his car, indicating that he desired to engage in sexual conduct with
Emily. Moreover, his testimony directly contradicts his confession to police
subsequent to his arrest, where Young admitted that he had online chats with Emily,
that they had discussed topics of a sexual nature, and that they had planned a meeting
which may not have been “100 percent innocent.” (Trial Tr. vol. II, at 138.) As the
district court noted, Young’s false testimony was not a result of confusion or faulty
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memory, thus the false testimony constituted an obstruction of justice. Therefore,
Young’s two-level sentence enhancement, pursuant to USSG §3C1.1, was appropriate.
III.
For the foregoing reasons, we affirm Young’s conviction and sentence.
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