United States v. William Clarke

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4299

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

WILLIAM ANDREW CLARKE,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:14−cr−00246−CMH−1)

Argued: September 23, 2016 Decided: November 18, 2016

Before NIEMEYER, MOTZ, and WYNN, Circuit Judges.

Affirmed by published opinion. Judge Wynn wrote the opinion, in
which Judge Niemeyer and Judge Motz joined.

ARGUED: Joseph Douglas King, KING, CAMPBELL, PORETZ & THOMAS
PLLC, Alexandria, Virginia, for Appellant. Christopher John
Catizone, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee. ON BRIEF: Dana J. Boente, United States
Attorney, Scott Andrew Claffee, Special Assistant United States
Attorney, William Carlson, Special Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.
WYNN, Circuit Judge:

A federal jury convicted Defendant William Andrew Clarke of

one count of attempting to persuade minors to engage in unlawful

sexual activity, in violation of 18 U.S.C. § 2422(b), and the

district court sentenced Defendant to 120 months imprisonment

and lifetime supervised release.

On appeal, Defendant argues that the district court erred

in denying his motion to suppress evidence obtained in an

inventory and warrant search of his vehicle. Defendant also

argues that the district court reversibly violated Federal Rule

of Criminal Procedure 30(b) by refusing to provide counsel with

key jury instructions before closing argument and failing to

properly instruct the jury regarding the charged offense.

Finally, Defendant maintains that the government did not produce

evidence sufficient to support his conviction. Finding no

reversible error, we affirm.

I.

While engaged in undercover child exploitation

investigative work in early October 2013, Department of Homeland

Security Special Agent Kevin J. Laws encountered Defendant on

Family Intimacy, a social networking website centered on incest.

Defendant’s Family Intimacy profile listed his experience with

incest, individuals he wanted to engage in incest with, and—-

most pertinent to Agent Laws’ investigation—-his desire to

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engage in incest with minors. Going by the alias “Jaye,” Agent

Laws sent Defendant a friend request, which Defendant accepted.

Defendant then messaged Agent Laws, stating that he was glad

Agent Laws had reached out and noting that they lived near each

other. Agent Laws messaged Defendant back, providing him with

Agent Laws’ undercover email address so that they could

communicate outside of the website.

On October 10, 2013, Defendant emailed Agent Laws and asked

whether Agent Laws had experience with incest. Agent Laws,

posing as the single father of two fictitious children, nine-

year-old Amy and eight-year-old Mark, replied that he had

molested his daughter since she was four years old.

As their conversation progressed, Defendant said that he

had been looking for “likeminded” men close by. J.A. 253.

Agent Laws then mentioned that although he “[did not] really

play with” Mark, Mark had helped him masturbate a few times.

J.A. 98, 254. Defendant responded: “OMG you have a son! We need

to meet.” J.A. 98, 254.

Soon thereafter, Agent Laws invited Defendant over to his

house for the weekend, asking whether Defendant would be

comfortable with Agent Laws watching Amy and Mark perform sex

acts on Defendant. Defendant replied that “a get together would

be awesome,” and agreed to come over that weekend. J.A. 255.

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 Agent Laws and Defendant then moved their discussions to an

online messaging service. There, Defendant further inquired

into the children’s sexual experience. In particular, Defendant

asked Agent Laws how he introduced the children to incest, if

Agent Laws had ever “shared” the children before, and if Mark

and Amy had ever engaged in any sex acts with each other.

Defendant questioned Agent Laws about Mark specifically, asking

how it came about that Mark helped Agent Laws masturbate,

whether Mark masturbated, and whether Mark could get an erection

and orgasm. Agent Laws said that he was more interested in Amy

than Mark, to which Defendant replied, “[W]ell [Mark] needs me

around LOL.” J.A. 265. Agent Laws asked Defendant if he would

“also play with Amy.” J.A. 266. Defendant responded, “[O]f

course.” J.A. 266.

Agent Laws eventually suggested that he and Defendant meet

at a restaurant near Agent Laws’ house. Agent Laws and

Defendant then spoke over the phone to discuss their plans for

meeting and having sex with the children. Defendant asked Agent

Laws what he had told the children about Defendant’s upcoming

visit. Agent Laws suggested he tell the children that “Uncle

Bob’s coming over.” J.A. 110. Defendant said that it would be

“easier” if Agent Laws referred to him by his real name--“Andy”-

-when talking with the children because that would make his

interactions with the children “more natural.” J.A. 110. Per

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Defendant’s instruction, Agent Laws reported that he told Mark

and Amy that his “good friend Andy” would be coming to their

house to engage in sex acts. J.A. 117, 272. During their call,

Defendant also asked Agent Laws if he thought the children would

talk to him over the phone and if the children were excited

about meeting someone else. Agent Laws and Defendant agreed

that they would meet the next day, October 11, 2013.

On the morning of their planned meeting, Agent Laws and

Defendant discussed Defendant’s upcoming visit once more over a

video call. During their call, Defendant asked Agent Laws “if

it was okay if [Defendant] performed oral sex on Mark and Mark

performed oral sex on [Defendant], and also if [Defendant]

performed oral sex on Amy.” J.A. 116. Defendant also said

Agent Laws should “t[ake] the lead and t[ell] [Defendant] when

to join in.” J.A. 116.

After Agent Laws and Defendant ended their video call,

Agent Laws and a cover team set up surveillance at the

restaurant at which he and Defendant had agreed to meet.

Defendant arrived at the restaurant at approximately 1:50 P.M.

Upon approaching Agent Laws’ vehicle, Defendant was arrested and

interviewed.

While this interview was being conducted, Virginia State

Police inventoried Defendant’s vehicle. The vehicle was

subsequently towed to a Virginia State Police impound lot. The

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government later obtained and executed a search warrant for

Defendant’s vehicle. During their search of the vehicle, the

government discovered lubrication, condoms, a bag of candy, an

overnight bag, and a piece of paper listing Agent Laws’ phone

number and the ages of Agent Laws, Amy, and Mark.

On May 22, 2015, a jury found Defendant guilty of one count

of attempted coercion and enticement of a minor in violation of

18 U.S.C. § 2422(b). The district court sentenced Defendant to

120 months imprisonment and lifetime supervised release.

Defendant timely filed a notice of appeal.

On appeal, Defendant contends that the district court made

four reversible errors by: (1) improperly refusing to suppress

evidence obtained as a result of the purportedly unlawful

searches of Defendant’s vehicle; (2) violating Rule 30(b) of the

Federal Rules of Criminal Procedure by failing to inform

Defendant’s counsel of its jury instructions prior to closing

arguments; (3) improperly instructing the jury as to the meaning

of “induce” in 18 U.S.C. § 2422(b); and (4) improperly holding

that the government produced sufficient evidence to sustain

Defendant’s conviction. We disagree with all of Defendant’s

contentions.

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 II.

A.

Defendant first asserts that the district court erred in

denying Defendant’s motion to suppress evidence obtained through

the inventory search and subsequent warrant search of his

vehicle. In particular, Defendant argues that the inventory

search violated the Fourth Amendment and that the evidence

obtained through the warrant search--including lubrication,

condoms, and a bag of candy--should be suppressed because law

enforcement officers secured the warrant based on information

obtained during the allegedly unconstitutional inventory search.

In reviewing a district court’s ruling on a motion to

suppress, this Court “review[s] conclusions of law de novo and

underlying factual findings for clear error.” United States v.

Banks, 482 F.3d 733, 738 (4th Cir. 2007) (internal quotation

marks omitted). Because the district court denied Defendant’s

motion to suppress, “we construe the evidence in the light most

favorable to the government.” United States v. Kelly, 592 F.3d

586, 589 (4th Cir. 2010).

“The Fourth Amendment generally requires police to secure a

warrant before conducting a search.” United States v. Matthews,

591 F.3d 230, 234 (4th Cir. 2009) (quoting Maryland v. Dyson,

527 U.S. 465, 466 (1999)). However, a warrantless search may be

valid if the search “‘falls within one of the narrow and well-

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delineated exceptions’ to the Fourth Amendment’s warrant

requirement.” United States v. Currence, 446 F.3d 554, 556 (4th

Cir. 2006) (quoting Flippo v. West Virginia, 528 U.S. 11, 13

(1999)). It is well settled that an inventory search is one

such exception. Matthews, 591 F.3d at 234. “For the inventory

search exception to apply, the search must have ‘be[en] [1]

conducted according to standardized criteria,’ such as a uniform

police department policy, and [2] performed in good faith.” Id.

at 235 (first alteration in original) (citations omitted)

(quoting Colorado v. Bertine, 479 U.S. 367, 374 n.6 (1987)).

Defendant argues that the government failed to produce

evidence sufficient to allow the district court to find that the

inventory search was conducted pursuant to standardized

criteria. The government may prove the existence of

standardized criteria “by reference to either written rules and

regulations or testimony regarding standard practices.” Id.

(emphasis added) (internal quotation marks omitted). “To

justify a warrantless search, standardized criteria must

sufficiently limit a searching officer’s discretion to prevent

his search from becoming ‘a ruse for a general rummaging in

order to discover incriminating evidence.’” Id. (quoting

Florida v. Wells, 495 U.S. 1, 4 (1990)).

Here, in ruling on Defendant’s motion to suppress, the

district court considered the Virginia Department of State

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Police’s inventory search policy, General Order OPR 6.01

“Vehicle Impoundment and Inventory,” pursuant to which law

enforcement officers conducted the search, and the standard

inventory search form signed by the law enforcement officer who

conducted the inventory search of Defendant’s vehicle, which was

completed in accordance with the inventory search policy. The

district court did not clearly err in finding that this evidence

was sufficient to establish that the inventory search was

conducted pursuant to standardized criteria, particularly since

Defendant does not argue that the Virginia policy did not comply

with the Fourth Amendment. Accordingly, the district court

properly denied Defendant’s motion to suppress.

B.

Second, Defendant contends that the district court violated

Rule 30(b) of the Federal Rules of Criminal Procedure by failing

to apprise Defendant’s counsel of how it would instruct the jury

before closing arguments, and that the violation resulted in

actual prejudice warranting reversal of Defendant’s conviction.

Rule 30(b) of the Federal Rules of Criminal Procedure

requires that a trial court “inform the parties before closing

arguments how it intends to rule on the requested [jury]

instructions.” Fed. R. Crim. P. 30(b). Rule 30(b) serves at

least two purposes. First, by “inform[ing] trial lawyers in a

fair way what the instructions are going to be,” Rule 30(b)

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“allow[s] counsel the opportunity to argue the case

intelligently to the jury.” United States v. Horton, 921 F.2d

540, 547 (4th Cir. 1990) (internal quotation marks omitted).

Second, by informing counsel of instructions prior to closing

argument, Rule 30(b) allows counsel to lodge objections so as to

preserve errors for appeal and “aid the court in giving a proper

charge in the first instance.” United States v. Guadalupe, 979

F.2d 790, 794 (10th Cir. 1992) (stating that Rule 30(b)

contemplates the trial court “deliver[ing] a final copy of the

charge to counsel and permit[ting] them to raise objections

before instructing the jury whether the charge is to be

delivered prior to or following closing arguments”).

Here, Defendant submitted to the court the following

proposed instruction regarding the requisite mens rea for the

indicted offense--attempted enticement of a minor: “The

government must prove that the defendant intended to transform

or overcome the will of an individual . . . . Proof that the

defendant merely believed that he was communicating with someone

who could arrange an opportunity for him to engage in sexual

activity . . . is insufficient for a conviction.” J.A. 51. By

contrast, the government asked the court to instruct the jury

that the government must prove “[f]irst, that the defendant

intended to commit the crime of coercion or enticement of a

minor to engage in sexual activity; and second, that the

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defendant did an act constituting a substantial step towards the

commission of that crime.” J.A. 49.

At the close of evidence, the court told the parties that

it would first instruct the jury and then give the parties an

opportunity to object at the end of instructions. Defendant’s

counsel asked the court if it would be using any instructions

proposed by either party, stating that Defendant objected to

several of the government’s proposed instructions, particularly

with regard to attempt. The court responded: “Sometimes I do

and sometimes I don’t.” J.A. 186. Defendant’s counsel then

requested a copy of the district court’s instructions. The

court refused the request, stating, “You’ll be able to listen

and you can object when I’m finished.” J.A. 186-87. The court

also refused to recite its instructions to counsel before

presenting them to the jury. Ultimately, the court did not give

the instruction Defendant requested; instead, it instructed the

jury that “[t]he terms persuade, induce, and entice should be

given their ordinary meaning. In ordinary usage, the words are

effectively synonymous, and the idea conveyed is of one person

leading or moving another by persuasion or influence as to some

action or state of mind.” J.A. 217.

By refusing to provide its instructions to counsel before

closing arguments, we must hold that the district court violated

Rule 30(b). This violation placed Defendant’s counsel in the

11
difficult position of having to argue to the jury without

knowing how the court would ultimately instruct the jury.

Additionally, the violation deprived the parties of the

opportunity to lodge objections to the proposed instructions and

thereby give the court the opportunity to correct any errors

before instructing the jury.

Nevertheless, although the district court violated Rule

30(b), we may reverse only if Defendant demonstrates that the

violation resulted in actual prejudice. United States v.

Squillacote, 221 F.3d 542, 572 (4th Cir. 2000); United States v.

Burgess, 691 F.2d 1146, 1156 (4th Cir. 1982). We have not yet

had the occasion to consider what constitutes prejudice when a

district court violates Rule 30(b) by failing to provide counsel

with jury instructions before closing arguments. However, this

Court’s decision in Horton--which dealt with the related

question of whether a district court reversibly erred by failing

to give counsel additional time for argument after the court

provided a supplemental instruction--is instructive. In Horton,

we found that the defendant was not prejudiced by the trial

court’s error in allowing the parties only three minutes of

additional argument after providing the jury with a supplemental

instruction because “defense counsel made all the arguments

essential to his case . . . in his initial closing.” 921 F.2d

at 547-48 (finding “the factual predicates of [the original

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charge and new charge] so similar that the arguments to be made

against guilt are essentially the same under both theories”).

Like in Horton, Defendant fails to demonstrate actual

prejudice because the district court’s error did not inhibit

Defendant’s counsel from making his “essential” argument to the

jury--that “the government ha[d] to prove that [Defendant]

intended . . . to transform the will on the part of the minor.”

J.A. 205. Defendant’s counsel further explained to the jury

that an intent to “arrang[e] to have sex” did not satisfy this

requirement. J.A. 205. These two statements reflected the

instructions proposed by Defendant. Importantly, and

notwithstanding the district court’s failure to notify the

parties of its instructions, the instruction ultimately given by

the district court reflected both governing law and the argument

made by Defendant’s counsel--that the government had to prove

that Defendant intended to “lead[] or mov[e] [a minor] by

persuasion or influence” to engage in sex. J.A. 217; see infra

Part II.C. Additionally, the government introduced sufficient

evidence from which a jury could conclude that Defendant

intended to persuade Mark and Amy to engage in sex acts, not

just arrange sex acts. See infra Part II.D.

Because Defendant’s counsel was able to make “all arguments

essential to his case,” because those arguments reflected the

instructions ultimately provided by the court, and because the

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government introduced sufficient evidence to convict Defendant

under the correct legal standard, we conclude that the district

court’s violation of Rule 30(b) did not prejudice Defendant.

C.

Defendant next argues that the district court erroneously

instructed the jury on the definition of “induce” under Section

2422(b). This Court “review[s] de novo the claim that a jury

instruction failed to correctly state the applicable law.”

United States v. Jefferson, 674 F.3d 332, 351 (4th Cir. 2012).

“In conducting such a review, we do not view a single

instruction in isolation; rather we consider whether taken as a

whole and in the context of the entire charge, the instructions

accurately and fairly state the controlling law.” Id. (internal

quotation marks omitted).

A person violates Section 2422(b) if he “knowingly

persuades, induces, entices, or coerces” a minor to engage in

unlawful sexual activity, or attempts to do so. 18 U.S.C.

§ 2422(b). Although the terms “persuade,” “induce,” and

“entice” are not statutorily defined, we have found that they

are “words of common usage” and have “accord[ed] them their

ordinary meaning.” United States v. Engle, 676 F.3d 405, 411

n.3 (4th Cir. 2012). Moreover, these terms are “effectively

synonymous,” conveying the idea “of one person leading or moving

another by persuasion or influence, as to some action [or] state

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of mind.” Id. (alteration in original) (internal quotation

marks omitted). Our interpretation of these terms accords with

the statute’s intent to “criminalize[] an intentional attempt to

achieve a mental state--a minor’s assent.” Id. at 419 (emphasis

omitted) (internal quotation marks omitted).

Defendant contends that the district court failed to

properly instruct the jury because it did not clarify that

“arranging” or “causing”—-one definition of “induce”—-sexual

activity with a minor was insufficient to support a conviction

under Section 2422(b). Thus, Defendant argues, the district

court “impermissibly broadened the definition of the requisite

intent and allowed for a conviction based on insufficient

evidence.” Appellant’s Br. at 28. We disagree.

In instructing the jury, the district court explained that

“[t]he terms persuade, induce, and entice should be given their

ordinary meaning. In ordinary usage, the words are effectively

synonymous, and the idea conveyed is of one person leading or

moving another by persuasion or influence as to some action or

state of mind.” J.A. 217. These instructions mirror Engle

almost verbatim. See Engle, 676 F.3d at 411 n.3. And, by

emphasizing that the jury must find that Defendant “le[d] or

mov[ed] [a minor] by persuasion or influence” to engage in sex

acts, the district court’s jury instructions required the jury

to find that Defendant made “an effort to alter [a minor’s]

15
mental state,” rather than “merely convey[ing] the notion of

‘causation,’” as Defendant suggests. Appellant’s Br. at 26.

Accordingly, we hold that the district court’s instruction

fairly and accurately reflected the applicable law.

D.

Finally, Defendant argues that the district court erred in

denying his motion for acquittal. In particular, Defendant

maintains that the government failed to produce sufficient

evidence that Defendant attempted to persuade, directly or

indirectly, a minor to engage in sex acts.

“We review de novo a district court’s denial of a motion

for judgment of acquittal pursuant to Rule 29 of the Federal

Rules of Criminal Procedure.” United States v. Green, 599 F.3d

360, 367 (4th Cir. 2010). A defendant who brings a sufficiency

challenge bears a heavy burden, United States v. Palomino-

Coronado, 805 F.3d 127, 130 (4th Cir. 2015), as “[a]ppellate

reversal on grounds of insufficient evidence . . . [is] confined

to cases where the prosecution’s failure is clear,” Green, 599

F.3d at 367 (quoting Burks v. United States, 437 U.S. 1, 17

(1978)) (internal quotation marks omitted). “This Court must

uphold a jury’s verdict ‘if there is substantial evidence in the

record to support it.’” United States v. Bailey, 819 F.3d 92,

95 (4th Cir. 2016) (quoting United States v. Wilson, 198 F.3d

467, 470 (4th Cir. 1999)). “In determining whether the evidence

16
in the record is substantial, we view the evidence in the light

most favorable to the government and inquire whether there is

evidence that a reasonable finder of fact could accept as

adequate and sufficient to support a conclusion of [the]

defendant’s guilt beyond a reasonable doubt.” Id. (quoting

Wilson, 198 F.3d at 470) (internal quotation marks omitted).

A person violates Section 2422(b) if he “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.” 18 U.S.C. § 2422(b). To obtain

a conviction under this provision, “the government must prove

that the defendant: (1) used a facility of interstate commerce;

(2) to knowingly entice or attempt to entice any person under

the age of 18; (3) to engage in illegal sexual activity.”

Engle, 676 F.3d at 411–12. If the defendant is charged with

attempt, “the government must prove beyond a reasonable doubt,

that (1) he had culpable intent to commit the crime and (2) he

took a substantial step towards completion of the crime that

strongly corroborates that intent.” Id. at 419-420. Mere

preparation is insufficient to establish intent. See id. at

423.

Defendant’s sufficiency challenge requires us to determine

in what circumstances, if any, a defendant can violate Section

17
2422(b) without communicating directly with a minor but instead

communicating indirectly through an adult intermediary--a

question that this Court has not yet had occasion to address.

In enacting Section 2422(b), Congress intended “to criminalize

persuasion and the attempt to persuade, not [just] the

performance of the sexual acts themselves.” Id. at 419; see

also United States v. McMillan, 744 F.3d 1033, 1036 (7th Cir.

2014) (“[T]he essence of [the act Section 2422(b) contemplates]

is attempting to obtain the minor’s assent.”).

“One particularly effective way to persuade or entice a

person to do something is to enlist the help of a trusted

relative, friend, or associate.” McMillan, 744 F.3d at 1036.

To that end, sexual predators can and do use adults--

particularly parents, guardians, or others in positions of

influence or power--to attempt to persuade minors to engage in

sexual activity. See id.; United States v. Nestor, 574 F.3d

159, 161-62 (3d Cir. 2009). For this reason, our Sister

Circuits have uniformly concluded that Section 2422(b)

“extend[s] to adult-to-adult communications that are designed to

persuade the minor to commit the forbidden acts.” McMillan, 744

F.3d at 1035 (collecting cases). We agree and therefore hold

that “communications with an intermediary aimed at persuading,

inducing, enticing, or coercing a minor to engage in sexual

activity fit within [the] common understanding of a criminal

18
attempt that is prohibited by [Section] 2422(b).” United States

v. Roman, 795 F.3d 511, 517 (6th Cir. 2015) (first alteration in

original) (internal quotation marks omitted).

Defendant argues that even if communications with adult

intermediaries can violate Section 2422(b), the government’s

evidence is insufficient to establish that he attempted to

persuade Mark and Amy to engage in sex acts, directly or

indirectly through Agent Laws. We disagree.

The government introduced multiple pieces of evidence that,

taken together, would allow a reasonable juror to conclude that

Defendant intended to persuade, induce, entice, or coerce minors

to engage in sex acts and took substantial steps toward doing

so.

First, Defendant directed Agent Laws to use Defendant’s

name when talking to the children about his upcoming visit so

that Defendant’s interaction with the children would be “more

natural.” J.A. 110. Accordingly, a reasonable factfinder could

conclude that Defendant “attempt[ed] to use [Agent Laws] as an

intermediary to convey [a] message to the child[ren]”--a message

aimed at persuading the children to engage in sex acts.

McMillan, 744 F.3d at 1036. Second, Defendant asked to speak

directly to the children over the phone. Third, Defendant asked

Agent Laws--an individual Defendant reasonably believed was in a

position to influence and control Mark and Amy--if he could

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engage in sex acts with both of the children. Indeed, by

telling Agent Laws he should “t[ake] the lead and t[ell]

[Defendant] when to join in,” Defendant expressly relied on

Agent Laws’ position of influence with Mark and Amy to convince

the children to engage in sex acts. J.A. 116.

The government not only produced evidence that Defendant

attempted to entice Mark and Amy indirectly through Agent Laws,

but also produced evidence that would allow a reasonable

factfinder to conclude that Defendant took a substantial step

towards directly enticing the minors to engage in sex acts. In

particular, Defendant brought candy to what he believed was a

weekend visit with Mark and Amy, during which Defendant hoped

the children would engage in sex acts. A reasonable jury could

have concluded that Defendant intended to use the candy to

entice Mark and Amy to engage in sex acts. Because the

government produced sufficient evidence that Defendant intended

to persuade minors to engage in sex acts and took substantial

steps towards doing so, we hold that the district court did not

err in denying Defendant’s motion for a judgment of acquittal.

III.

For the foregoing reasons, the judgment of the district

court is

AFFIRMED.

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