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
2
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.
3
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
4
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
5
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.
6
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-
7
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
8
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)
9
“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
10
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
12
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
13
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
14
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
19
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.
20