Case: 11-10793 Document: 00511915767 Page: 1 Date Filed: 07/10/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 10, 2012
No. 11-10793 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
GUSTAVO OLVERA,
Defendant–Appellant.
Appeal from the United States District Court
for the Northern District of Texas
Before DAVIS, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:
Following a conditional guilty plea, Gustavo Olvera appeals the district
court’s decision not to dismiss a charge of attempted enticement of a child to
engage in criminal sexual activity in violation of 18 U.S.C. § 2422(b). Olvera
contends that communications with an adult who was posing as the child’s
father, without any direct communication with a child, cannot violate that
statute. We affirm.
I
Olvera was indicted on one count of attempting to persuade, induce, or
entice a child to engage in criminal sexual activity and one count of receipt of
child pornography. For the purposes of his motion to dismiss the enticement
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No. 11-10793
count, he stipulated to the facts alleged in the criminal complaint filed by a
federal agent.
The complaint indicated that Olvera exchanged e-mails with an adult,
Timothy Whittington, about the two of them and Whittington’s eleven-year-old
son meeting and “hanging out” nude together. After Whittington’s arrest on an
unrelated matter, he gave a government agent permission to use his identity to
continue communications with Olvera. Olvera explained to the agent posing as
Whittington that he wanted to see Whittington and his son naked and to cuddle
with the boy. Prompted by the agent for pictures that could “get [the son] in the
mood,” Olvera said that he had videos of “boys and girls” and sent a picture of
his erect penis to show to the child. Olvera also discussed specific sex acts he
wished the boy to perform.
Olvera and the agent agreed to meet at an apartment, and the agent
suggested bringing personal lubricant and condoms, which Olvera did. When
Olvera arrived, the agent arrested him. Olvera admitted that he had intended
to have sex with Whittington’s son, whom he knew to be eleven years old, and
that he sent the picture of his genitals so that Whittington would show it to his
son to get the son “in the mood.”
Olvera moved to dismiss the enticement count on the basis that he never
communicated directly with a child or anyone he believed to be a child, arguing
that his conduct thus did not violate the statute. The district court denied the
motion, and Olvera pleaded guilty to the enticement count. The plea agreement
reserved his right to appeal the decision on the motion to dismiss. He filed a
timely notice of appeal.
2
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No. 11-10793
II
Olvera’s appeal asks us to reverse the decision on the motion to dismiss.
When a motion to dismiss is based on the interpretation of a federal statute, we
review the denial of the motion de novo.1
Section 2422(b) states in pertinent 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 under this title and imprisoned not less than 10 years or for
life.2
To sustain a conviction for attempt, the evidence must show the defendant “(1)
acted with the culpability required to commit the underlying substantive offense,
and (2) took a substantial step toward its commission.”3 We have applied this
to § 2422(b) by requiring proof that the defendant “intended to ‘persuade[ ],
induce[ ], entice[ ], or coerce[ ]’ a person whom he believed to be a minor into
illegal sexual contact and took a substantial step toward that persuasion or
enticement.”4 “The substantial step must be conduct which strongly corroborates
the firmness of defendant’s criminal attempt.”5
1
United States v. Coleman, 609 F.3d 699, 703 (5th Cir. 2010).
2
18 U.S.C. § 2422(b).
3
United States v. Barlow, 568 F.3d 215, 219 (5th Cir. 2009) (citing United States v.
Farner, 251 F.3d 519, 513 (5th Cir. 2001)).
4
Id. (alterations in original).
5
Farner, 251 F.3d at 513.
3
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In addition to barring direct contact with a minor for the prohibited
purposes, we have held that § 2422(b) applies when a defendant communicates
with an adult undercover agent posing as a minor.6 The question presented by
this case is whether an individual can violate the statute solely through
communications with an adult whom he knows to be an adult. Though we have
yet to address this issue, every other circuit to do so has concluded that such
conduct can fall within the statute.7
Olvera argues that we should diverge from our sister circuits on this issue.
He points out that the object of each verb in the statute is “any individual who
has not attained the age of 18 years,” so communications intended to persuade
an adult to grant access to a minor cannot fall within the statute. He further
contends that the statute was intended to reach those who directly target
children to take advantage of their vulnerability and inexperience, so direct
contact must be shown in order to constitute a violation.
The record in this case undercuts Olvera’s first argument. He is correct
that the object of the phrase “persuades, induces, entices, or coerces” is the child.
But, though Olvera communicated only with Whittington and the agent posing
as Whittington, Olvera directed some of his intended inducements to the son and
took substantial steps toward gaining the son’s assent. He sent a picture of his
genitals to show to the child and offered videos to get the child “in the mood.”
6
Id. (holding that “legal impossibility” defense did not apply and affirming conviction
for attempt).
7
See United States v. Berk, 652 F.3d 132, 140 (1st Cir. 2011), cert. denied, 132 S. Ct.
1650 (2012); United States v. Douglas, 626 F.3d 161, 164-65 (2d Cir. 2010), cert. denied, 131
S. Ct. 1024 (2011); United States v. Nestor, 574 F.3d 159, 162 (3d Cir. 2009); United States v.
Spurlock, 495 F.3d 1011, 1014 (8th Cir. 2007); United States v. Murrell, 368 F.3d 1283, 1288
(11th Cir. 2004).
4
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No. 11-10793
He also made clear to the agent the sexual activity he hoped to have with the boy
and arranged to meet for that purpose, then arrived at the appointed place and
time.
Olvera’s argument that the contact with the child must be direct fails. He
cites the dissenting opinion in United States v. Laureys by Judge Brown of the
District of Columbia Circuit, which suggests that “Congress very well could have
decided that child victims are more vulnerable to online persuasion, inducement,
enticement, and coercion than their adult guardians. The most sensible
interpretation of subsection (b) is that Congress targeted the enticement of
minors for that very reason.”8 Olvera adds that Congress could view his contact
with only an adult as less culpable than that of someone who directly contacted
a child.
Judge Brown’s observation was in the context of her disagreement with
United States v. Murrell, an Eleventh Circuit case that upheld the conviction of
a defendant who attempted to convince an adult to cause a child to engage in
sexual conduct.9 But Judge Brown also pointed out that the other circuit court
cases on the issue “have required proof the defendant attempted to cause assent
on the part of a minor, not the adult intermediary,” that is, “the defendant’s
communication with an adult was either a vehicle through which the defendant
attempted to obtain the child’s assent, or a substantial step toward persuasive
communication with the child herself.”10 Olvera’s case fits squarely in this latter
8
653 F.3d 27, 42 (D.C. Cir. 2011) (Brown, J., dissenting).
9
Id. at 39 (citing Murrell, 368 F.3d at 1287).
10
Id. at 39-40 (footnote omitted) (summarizing cases); see, e.g, United States v. Lee, 603
F.3d 904, 914-15 (11th Cir. 2010) (“We will uphold Lee's conviction if a reasonable jury could
5
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category, as he took actions directed toward obtaining the child’s assent through
an intermediary, not simply the assent of the father. As a result, we need not
address the situation present in Murrell to decide this case. Olvera’s
communications sending a photo and videos that he intended the intermediary
to show to the child constituted an attempt to entice a child within the meaning
of the statute.
Olvera also argues that the legislative history of the provision indicates
that Congress intended the statute to reach only direct communications with
children. Because we conclude that the plain language of the statute
unambiguously encompasses Olvera’s conduct, and because nothing in the
statute suggests any intent to exclude attempts to entice a child through an
adult intermediary, we need not delve into this argument.11
* * *
For the foregoing reasons, we AFFIRM the judgment of the district court.
have found that Lee intended to cause Candi’s [minor] daughters to assent to sexual contact
with him and that Lee took a substantial step toward causing that assent.”).
11
See Tidewater Inc. v. United States, 565 F.3d 299, 303 (5th Cir. 2009) (“When the
plain language of a statute is unambiguous, there is no need to resort to legislative history for
aid in its interpretation.”).
6