[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 4, 2004
No. 03-12582 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 02-14077-CR-DLG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY F. MURRELL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 4, 2004)
Before WILSON and KRAVITCH, Circuit Judges, and GOLDBERG*, Judge.
WILSON, Circuit Judge:
*
Honorable Richard W. Goldberg, Judge, United States Court of International Trade,
sitting by designation.
Anthony Murrell appeals his conviction under 18 U.S.C. § 2422(b) for
using a facility of interstate commerce to attempt to knowingly persuade, induce,
entice, or coerce a minor to engage in unlawful sexual activity. Specifically,
Murrell argues that his conduct – making an online deal with a purported adult
father to have sex with the father’s minor daughter – is not within the purview of
§ 2422, and that certain sentencing enhancements were improperly applied. Upon
careful review, we affirm Murrell’s conviction and sentence.
Background
In September 2002, Appellant Anthony Murrell (“Murrell”), under the
screen name “Bone 1031,” entered two separate America Online (“AOL”) chat
rooms in which he communicated with undercover Detective Neil Spector of the
St. Lucie County Sheriff’s Office.
On September 16, in the “family love” chat room, Murrell engaged in an
online chat with Spector, who was posing as the adult mother of a thirteen
year-old daughter. During their exchange, Murrell expressed an interest in
meeting the mother and daughter for a “discreet sexual relationship.” In a
subsequent email, he stated, “I would like to be able to get intimate with you and
[your daughter] if the spark is there,” and provided his phone number.
2
On September 18, while Detective Spector was in a chat room entitled
“Rent F Vry Yng,” in an undercover capacity as an adult male with a fictitious
teen daughter, he received another message from Murrell. Murrell wrote: “Hi. Are
you renting daughter?” Spector responded that his daughter was thirteen years
old. Murrell then wrote that he lived near Orlando and asked if “the daughter
enjoyed being rented.” He also inquired whether the daughter had had sex yet,
and questioned whether she would “go along.” Spector asked Murrell whether he
was serious and what he had to offer. Murrell suggested that the two speak on the
phone, and gave Spector his phone number. Spector also gave Murrell his
undercover phone number.
Spector called Murrell and asked him whether he was sincere in his interests
and whether he was a “cop.” Murrell replied that he was sincere, but that he
wanted the same assurances from Spector. During the conversation, Murrell
explained his intentions. He expressed that he wanted to have oral sex and
intercourse with the daughter, and stated, “what I actually recommend is maybe
once or twice, just me and her.”
Over the next few days, Murrell and Detective Spector communicated
online and by telephone, culminating in an agreement that Murrell would meet
Spector and his purported daughter at 5:00 p.m. on September 24 at the Vero
3
Beach Holiday Inn, and that Murrell would pay Spector $300.00 for sex with the
minor.
At approximately 5:05 p.m. on September 24, Murrell arrived at the Vero
Beach Holiday Inn and met with Detective Spector who was acting in his
undercover capacity. Murrell showed Spector a teddy bear he had brought for the
daughter. He was also carrying $300.00 and a box of condoms. Murrell indicated
that he was ready to meet the girl, and was arrested as he walked toward a hotel
room in which he believed the minor was waiting.
On October 3, 2002, a federal grand jury in Ft. Pierce, Florida returned an
indictment charging Murrell under 18 U.S.C. § 2422(b). Murrell initially pled not
guilty. On February 6, 2003, he filed a motion to dismiss the indictment, in which
he stipulated to certain facts, but claimed that his actions were not criminal under
§ 2422. After holding a hearing on the matter, the district court denied his motion.
Murrell entered a conditional guilty plea on February 19, 2003, without the benefit
of a written plea agreement. As a condition of his plea, he preserved his claim that
his stipulated conduct did not violate § 2422.
On April 23, 2003, the district court held a sentencing hearing, in which it
overruled Murrell’s objections to the two two-level sentencing enhancements
under U.S.S.G. § 2G1.1(b)(2)(B) and (b)(5) recommended in his PSI. Murrell was
4
sentenced to a 33-month term of imprisonment, to be followed by a three-year
period of supervised release. The court also ordered him to participate in sex
offender and mental health treatment programs, and imposed restrictions on his
use of computers.
Murrell now appeals, asserting that the district court erred in denying his
motion to dismiss his indictment, and in applying the two sentencing
enhancements. He claims that because he did not directly communicate with a
minor or person he believed to be a minor, his conduct was not criminally
proscribed by the language of § 2422(b).
Standards of Review
The interpretation of a statute is a question of law subject to de novo review.
United States v. Pistone, 177 F.3d 957, 958 (11th Cir. 1999).
We review purely legal questions concerning use of the Sentencing
Guidelines de novo. United States v. Williams, 340 F.3d 1231, 1234 n.8 (11th Cir.
2003). Except in certain cases in which the lower court departs from the
applicable Guideline range, we review a district court’s application of the
Guidelines to the facts with “due deference.” 18 U.S.C. § 3742(e); see also United
States v. White, 335 F.3d 1314, 1317 (11th Cir. 2003).
Discussion
5
A. Violation of § 2422(b) Where the Defendant Does Not Communicate Directly
with a Minor or Supposed Minor
As a matter of first impression in the federal circuit courts, we must
determine whether a defendant who arranges to have sex with a minor through
communications with an adult intermediary, by means of interstate commerce,
violates § 2422(b).
Section 2422(b) states, in relevant part:
Whoever, using the mail or any facility or means of interstate or
foreign commerce, . . . 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 [and imprisoned].
18 U.S.C. § 2422(b) (emphasis added).
Murrell was convicted for attempt under the statute because there was no
actual minor involved who could have been influenced. He concedes that use of
AOL chat rooms and instant messaging satisfies the interstate commerce element
of the offense because his communications with Detective Spector traveled
through an AOL server based in Virginia. However, he argues that § 2422(b) does
not otherwise encompass his conduct because, in his view, one must communicate
directly with a minor or supposed minor in order to violate the statute. We
disagree.
6
In United States v. Root, 296 F.3d 1222 (11th Cir. 2002), cert denied, 537
U.S. 1176 (2003), we upheld an attempt conviction under § 2422(b) where a
defendant believed he was communicating with a minor, but was actually
communicating with an undercover government agent. Id. at 1227-28. Murrell
contends that Root is distinguishable from his case because it involved direct
communication between the defendant and the purported minor. However, we fail
to recognize how this factual discrepancy is relevant to the disposition of the
charges against Murrell.
To sustain a conviction for the crime of attempt, the government need only
prove (1) that the defendant had the specific intent to engage in the criminal
conduct for which he is charged and (2) that he took a substantial step toward
commission of the offense. See United States v. Baptista-Rodriguez, 17 F.3d
1354, 1369 (11th Cir. 1994); see also Root, 296 F.3d at 1227-28. For example, we
have stated that a conviction for attempted importation of marijuana requires proof
of “a specific intent to import marijuana” and a substantial step towards the
importation. See United States v. Collins, 779 F.2d 1520, 1527 (11th Cir. 1986).
Combining the definition of attempt with the plain language of § 2422(b),
the government must first prove that Murrell, using the internet, acted with a
specific intent to persuade, induce, entice, or coerce a minor to engage in unlawful
7
sex. The underlying criminal conduct that Congress expressly proscribed in
passing § 2422(b) is the persuasion, inducement, enticement, or coercion of the
minor rather than the sex act itself.1 That is, if a person persuaded a minor to
engage in sexual conduct (e.g. with himself or a third party), without then actually
committing any sex act himself, he would nevertheless violate § 2422(b).2
In United States v. Bailey, 228 F.3d 637 (6th Cir. 2000), the Sixth Circuit
addressed this very issue. The defendant in Bailey contended that attempt under
§ 2422(b) “requires the specific intent to commit illegal sexual acts rather than just
the intent to persuade or solicit the minor victim to commit sexual acts.” Id. at
638. In response, the court held:
While it may be rare for there to be a separation between the intent to
persuade and the follow-up intent to perform the act after persuasion,
they are two clearly separate and different intents and the Congress
has made a clear choice to criminalize persuasion and the attempt to
persuade, not the performance of the sexual acts themselves. Hence,
1
In contrast, we note that 18 U.S.C. § 2423(b) prohibits interstate travel “for the purpose
of engaging in any illicit sexual conduct with another person.” 18 U.S.C. § 2423(b) (2004). To
violate this statute, the defendant must intend to engage in unlawful sex.
2
Some courts, however, have not made such a distinction. See, e.g., United States v.
Farner, 251 F.3d 510, 513 (5th Cir. 2001) (“[T]he district court correctly concluded . . . that
Farner intended to engage in sexual acts with a 14-year-old girl and that he took substantial steps
toward committing the crime.”). Even if we were to require the government to prove that
Murrell acted with the specific intent to engage in sexual activity with a minor, our result would
remain unchanged. Murrell’s conduct clearly indicates that he not only intended to induce a
minor to engage in sexual activity, but that he also intended to proceed to engage in unlawful sex
acts with the minor.
8
a conviction under the statute only requires a finding that the
defendant had an intent to persuade or to attempt to persuade.
Defendant Bailey’s attack is therefore meritless.
Id. at 639. Thus, to satisfy the first element of attempt, we must determine
whether Murrell acted with the intent to persuade, induce, entice, or coerce a
minor to engage in unlawful sexual activity. Because we view Murrell’s actions
as those of inducement rather than persuasion, enticement, or coercion, we will
focus upon that component.
Murrell asserts that he could not have intended to induce a minor to engage
in illegal sex acts without actually speaking to a person he believed to be a minor.
Put another way, Murrell contends that the minor’s inducement may not be
effected indirectly via an intermediary, and that accordingly, he could not have
intended to induce a minor to engage in sex by speaking only to a go-between.
We have previously held that the term “induce” in § 2422 is not ambiguous
and has a plain and ordinary meaning. See United States v. Panfil, 338 F.3d 1299,
1301 (11th Cir. 2003). “Induce” can be defined in two ways. It can be defined as
“[t]o lead or move by influence or persuasion; to prevail upon,” or alternatively,
“[t]o stimulate the occurrence of; cause.” THE AM. HERITAGE DICTIONARY OF THE
ENGLISH LANGUAGE 671 (William Morris ed., Houghton Mifflin Co. 1981). We
must construe the word to avoid making § 2422 superfluous. See Medberry v.
9
Crosby, 351 F.3d 1049, 1061 (11th Cir. 2003). To that end, we disfavor the
former interpretation of “induce,” which is essentially synonymous with the word
“persuade.” By negotiating with the purported father of a minor, Murrell
attempted to stimulate or cause the minor to engage in sexual activity with him.
Consequently, Murrell’s conduct fits squarely within the definition of “induce.”
Moreover, we note that the efficacy of § 2422(b) would be eviscerated if a
defendant could circumvent the statute simply by employing an intermediary to
carry out his intended objective. In this case, Murrell communicated with an adult
who he believed to be the father of a thirteen-year-old girl and who presumably
exercised influence over the girl. Murrell’s agreement with the father, who was
acting as an agent or representative, implied procuring the daughter to engage in
sexual activity. Because we find that Murrell acted with the intent to induce a
minor to engage in unlawful sexual activity, the first element of attempt is
satisfied.
Next, we turn to the second element of attempt – whether Murrell took a
substantial step toward his intended goal of inducing a thirteen year-old girl to
engage in sexual activity with him. To find that a substantial step was taken, the
court must determine that the defendant’s objective acts mark his conduct as
criminal such that his acts as a whole strongly corroborate the required culpability.
10
United States v. Forbrich, 758 F.2d 555, 557 (11th Cir. 1985). Murrell’s objective
acts strongly corroborate his culpability and provide clear evidence that his
conduct was criminal. Murrell (1) made several explicit incriminating statements
to Detective Spector;3 (2) traveled two hours to another county to meet a minor
girl for sex in exchange for money; and (3) carried a teddy bear, $300.00 in cash,
and a box of condoms when he arrived at the meeting site. His actions, taken as a
whole, demonstrate unequivocally that he intended to influence a young girl into
engaging in unlawful sexual activity and that his conduct was therefore criminal.
Thus, Murrell took a substantial step toward inducing a minor to engage in illicit
sexual acts, thereby satisfying the second element of criminal attempt.
Because we find that direct communication with a minor or supposed minor
is unnecessary under the text of § 2422(b), and that Murrell’s conduct satisfied the
elements of attempt, we hold that such conduct was in violation of the statute.
B. Two-level Sentencing Enhancement Under U.S.S.G. § 2G1.1(b)(2)(B)
3
Note that, in Bailey, the Sixth Circuit upheld an attempt conviction under § 2422(b)
where the defendant, via online communications, merely tried to convince minors to meet him
for sex acts, but none of them were actually persuaded. Thus, the Bailey court reasoned that the
“substantial steps” that strongly corroborated the defendant’s intent to persuade the minor
victims were simply the solicitous messages he sent to them; no travel or additional acts were
required to satisfy the “substantial step” requirement. See Bailey, 228 F.3d at 640. We need not
reach the question whether communication via a means of interstate commerce, without more, is
sufficient to sustain a conviction for attempt under § 2422(b) because Murrell engaged in
objective acts in addition to his communications with Detective Spector.
11
Murrell received a two-level sentencing enhancement under U.S.S.G.
§ 2G1.1(b)(2)(B) for an offense involving a “victim” between the ages of twelve
and sixteen. The commentary to § 2G1.1 defines the word “victim” as follows:
“Victim” means a person transported, persuaded, induced, enticed, or
coerced to engage in, or travel for the purpose of engaging in, a
commercial sex act or prohibited sexual conduct, whether or not the
person consented to the commercial sex act or prohibited sexual
conduct. Accordingly, “victim” may include an undercover law
enforcement officer.
U.S.S.G. § 2G1.1, cmt. n.1 (2003).4 In this case, we have neither an actual victim
nor an undercover law enforcement officer “victim.” We must therefore determine
whether the increased sentence is justified where there is only a fictitious victim.
No circuit has yet considered this question.5
4
Commentary and Application Notes to the Sentencing Guidelines are binding on the
courts unless they contradict the plain meaning of the text of the Guidelines. See Stinson v.
United States, 508 U.S. 36, 38 (1993).
5
In United States v. Angle, 234 F.3d 326 (7th Cir. 2000), the Seventh Circuit upheld a
similar enhancement under U.S.S.G. § 2A3.1 for a “fictional victim” under a plain error standard.
The court noted that no circuit had considered the issue, and stated, “[c]onsidering the lack of
case authority on this issue, we conclude that, if there was error, Angle cannot demonstrate . . .
that the error was ‘clear or obvious’ (in other words, that ‘a legal rule was violated during the
district court proceedings’).” Id. at 346 (citations omitted). Section 2A3.1 does not define the
word “victim.”
Previously, the Ninth Circuit mentioned that a lower court had declined to apply § 2A3.1
because the victims were fictional. See United States v. Butler, 92 F.3d 960, 963 n.6 (9th Cir.
1996). The Butler court, however, never addressed the meaning or scope of the term “victim”
and made no ruling on this question.
12
Because the Sentencing Commission specifically provided that undercover
officers are “victims” for purposes of § 2G1.1, we deduce that the enhancement is
directed at the defendant’s intent, rather than any actual harm caused to a genuine
victim. In terms of the defendant’s intent, as well as any actual harm done, there is
no difference between an undercover officer victim and a fictitious victim. Thus,
the enhancement applies whether the minor “victim” is real, fictitious, or an
undercover officer.6 Murrell’s two-level sentencing increase under
§ 2G1.1(b)(2)(B) is appropriate.
C. Two-level Sentencing Enhancement Under U.S.S.G. § 2G1.1(b)(5)
Murrell also received a two-level enhancement under U.S.S.G.
§ 2G1.1(b)(5), which states:
If a computer or an Internet-access device was used to (A) persuade,
induce, entice, coerce, or facilitate the travel of, a minor to engage in
a commercial sex act; or (B) entice, encourage, offer, or solicit a
person to engage in prohibited sexual conduct with a minor, increase
by 2 levels.
U.S.S.G. § 2G1.1(b)(5) (2003). Murrell argues that this enhancement is
inapplicable to him, again relying on the fact that he expressed no inducement
6
In addition, when the Commission amended U.S.S.G. § 2A3.2 to clarify that a “victim”
includes an undercover officer, it noted that “[t]his change was made to ensure that offenders
who are apprehended in an undercover operation are appropriately punished.” U.S.S.G.
MANUAL, supp. to app. C, amend. 592 at 50 (2000).
13
directly to a minor, via the internet.
We find, however, that the sentencing increase under subsection (b)(5)
applies. As mentioned above, inducement of a minor under § 2422(b) may take
place indirectly. Since Murrell used his computer to communicate with Detective
Spector for the purpose of inducing a thirteen-year-old girl to engage in a
commercial sex act7 with him, § 2G1.1(b)(5)(A) applies.8
Our conclusion is further supported by the commentary to § 2G1.1
regarding subsection (b)(5)(A):
Subsection (b)(5)(A) is intended to apply only to the use of a
computer or an Internet-access device to communicate directly with a
minor or with a person who exercises custody, care, or supervisory
control of the minor. Accordingly, the enhancement in subsection
(b)(5)(A) would not apply to the use of a computer or an
Internet-access device to obtain airline tickets for the minor from an
airline’s Internet site.
§ 2G1.1, cmt. n.8 (emphasis added). The commentary clearly indicates that the
enhancement is intended to apply to instances in which the defendant
communicates with the parent of a minor, provided of course that the parent
7
A “commercial sex act” is “any sex act, on account of which anything of value is given
to or received by any person.” § 2G1.1, cmt. n.1; 18 U.S.C. § 1591(c)(1). Because Murrell
planned to exchange $300.00 for sex acts with a minor, his conduct falls within the scope of this
definition.
8
Because subsection (A) of § 2G1.1(b)(5) applies, we need not consider the applicability
of subsection (B).
14
exercises custody, care, or supervisory control over the minor. Murrell believed
that Detective Spector, in his undercover capacity, exercised such authority over
his minor “daughter.” Murrell’s dealings with Detective Spector were premised
on his assumption that Detective Spector was in a position to direct or command
the actions of the “daughter.” Based on the plain language of the Guideline and its
commentary, we hold that Murrell’s two-level sentencing increase under §
2G1.1(b)(5) is proper.
Accordingly, we affirm Murrell’s conviction and sentence.
AFFIRMED.
15