United States v. Laureys

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 10, 2011 Decided August 19, 2011

No. 10-3047

UNITED STATES OF AMERICA,
APPELLEE

v.

BRANDON LAUREYS,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cr-00106)

Stephen C. Leckar, appointed by the court, argued the
cause and filed the briefs for appellant.

Patricia A. Heffernan, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Ronald C.
Machen, Jr., U.S. Attorney, and Roy W. McLeese III,
Julieanne Himelstein, and Amy H. Zubrensky, Assistant U.S.
Attorneys.

Before: HENDERSON, BROWN and KAVANAUGH, Circuit
Judges.
 2

Opinion for the Court filed PER CURIAM.

Opinion concurring in part and dissenting in part filed by
Circuit Judge HENDERSON.

Opinion dissenting in part filed by Circuit Judge BROWN.

PER CURIAM: Brandon Laureys appeals his conviction for
attempted enticement of a minor under 18 U.S.C. § 2422(b)
and for traveling across state lines with intent to engage in
illicit sexual conduct under § 2423(b). Laureys argues that the
evidence was insufficient to support his conviction and that his
trial counsel provided constitutionally ineffective assistance in
violation of the Sixth Amendment. Laureys also challenges the
conditions of supervised release the district court imposed at
sentencing. We reject Laureys’s challenge to the sufficiency of
the evidence and to the conditions of supervised release. We
remand for an evidentiary hearing on his ineffective assistance
claim.

I

The present case arises from Laureys’s online
communication in 2008 with Detective Timothy Palchak, who
was impersonating a child molester with access to a minor.
Unfortunately, this was not Laureys’s first encounter with
Palchak.

Laureys first communicated with Palchak in 2006, in a
Yahoo chat room. Palchak was posing as a twelve-year-old girl
home alone. Laureys—then 20 years old—drove to an address
provided by the “girl” and was promptly arrested. Laureys pled
guilty to enticement of a minor under D.C. law, and was
sentenced to 36 months with all but 8 months suspended.
 3

Laureys was out on probation when the events relevant to
this case took place. In November 2008, Palchak—this time
playing the part of an adult male—nabbed Laureys again.
Palchak’s alter ego, “Jim,” employing the username
“DaughterLover_Maryland,” advertised on an “Incest Forum
Meeting Place” at IncestTaboo.com that he was a 38-year-old
white male “into no limit fun.” His advertisement bore the
warning “Discreet only.” The next day Laureys responded to
Jim’s advertisement via Yahoo private message. After
exchanging their “stats” (age, sex, and location), the men
started discussing their sexual interest in young girls. When
“Jim” asked “what ages are your fav[orites]?” Laureys
responded, “9–11 or 12 maybe . . . maybe 8. maybe 13 . . . [I]
can[’]t pick. . . . love [th]em all lol.”[1] When Laureys learned
that Jim’s girlfriend frequently brought her nine-year-old
daughter over to Jim’s place and that Jim had been “messing
around” with the girl, Laureys expressed excitement, requested
photos of the girl, and ultimately asked to be invited over to
“help with the little girl.” Laureys assured Jim he would “make
sure she wants to do it,” and offered to “watch her an[d] [Jim]
[un]til she feels more comfortable.” When Jim said he “would
love to see her with another” man, Laureys replied
enthusiastically that he “would def[initely] be all about that,”
adding that he would “teach her to take two at once.” After Jim
electronically sent a girl’s picture to Laureys during the chat,
Laureys expressed excitement, told Jim “you . . . NEED to let
me hang out with her[,] man,” and asked him in explicit terms
about his sexual conduct with the girl depicted in the
photograph.

1
See OXFORD ENGLISH DICTIONARY ONLINE (defining “lol,”
“the initial letters of laughing out loud,” as an interjection used
“[o]riginally and chiefly in the language of electronic
communications . . . to draw attention to a joke or humorous
statement, or to express amusement”), http://www.oed.com/view/
Entry/291168 (last visited August 8, 2011).
 4

In the course of this conversation, Laureys and “Jim”
arranged to meet each other. Jim initially suggested “get[ting]
a beer first to make sure we are comfortable[,] then hav[ing]
fun at my [place].” Instead, Laureys proposed meeting at Jim’s
home “if you got anything fun we could watch or something
while we’re there.” Eventually, the men arranged to meet each
other at an address near Jim’s apartment, and Jim asked
Laureys to call him.

During a gap of more than two minutes in the
time-stamped chat transcript, Laureys called Jim. Laureys and
Palchak agree there was no mention of the girl during the
unrecorded phone call. Laureys testified at trial that in the
phone call he reassured Jim he was discreet and said “I just
want a quick blow job and go. My girlfriend doesn’t even
know that I still mess with guys.” According to Laureys, Jim
responded, “Okay, we’re on the same page.” Palchak testified,
however, that during the phone call, Jim asked Laureys if he
was discreet, the men exchanged physical descriptions again,
and Laureys described the car he would be driving.

The men quickly ended their chat, and Laureys left in his
car to meet Jim. When he reached the address Jim had
provided, Laureys was arrested.

At trial, Laureys testified in his own defense, and Palchak
testified for the prosecution. At the close of all the evidence,
Laureys moved for a judgment of acquittal, and the district
court denied the motion.

The jury convicted on all counts. The district court
sentenced Laureys to ten years (the mandatory minimum)
under 18 U.S.C. § 2422(b) for enticement of a minor, five
years (concurrent) under § 2423(b) for traveling in interstate
commerce to engage in illicit sexual conduct, and an additional
 5

10 years (consecutive) as required by § 2260A for committing
these crimes as a registered sex offender. Laureys raised no
objection to the sentence or to the terms of supervised release
the district court imposed at sentencing.

II

Laureys argues the Government’s evidence was
insufficient to prove his intent to persuade a minor to engage in
sexual activity under § 2422(b) and to prove his intent to
engage in sexual conduct with a minor under § 2423(b). “We
review a trial court’s denial of a motion for judgment of
acquittal de novo, considering the evidence in the light most
favorable to the government and determining whether, so read,
it is sufficient to permit a rational trier of fact to find all of the
essential elements of the crime beyond a reasonable doubt.”
United States v. Kayode, 254 F.3d 204, 212 (D.C. Cir. 2001)
(alterations omitted) (quoting United States v. Harrington, 108
F.3d 1460, 1464 (D.C. Cir. 1997)). The evidence in this case
may be susceptible of more than one interpretation, but we
cannot say it was insufficient for the jury to find the necessary
intent beyond a reasonable doubt.

A

Laureys devotes just two pages in each of his briefs to the
sufficiency of the evidence. His only argument against both
counts is that the evidence does not prove his intent to have sex
with a minor. According to Laureys, the transcript of his chat
shows he only wanted a quick and legal liaison with “Jim.”
Laureys’s references to the fictional girl were, he says, pure
fantasy. Laureys points to certain turns of phrase, such as
“down low,” “discreet,” and “perv out” that he says are
consistent with his intent to engage in same-sex intercourse
with an adult male, but not an underage girl. Even if we were to
 6

accept the connotations Laureys attributes to these phrases, and
which he argued to the jury, we would have no basis for
reversing the jury’s conviction. The rest of the evidence,
viewed in the light most favorable to the Government,
permitted the jury reasonably to find Laureys meant what he
said, whether or not he also intended to have sex with Jim.

Laureys is a self-described “bisexual . . . sexual addict”
with a “sexual attraction to children” that he expects to “live
with the rest of [his] life.” Tr. 5/26/2010, at 316, 373. Laureys
admits he intended to have sex with a fictitious
twelve-year-old girl in 2006, id. at 318, and he responded to
DaughterLover_Maryland’s advertisement on a website that
he admitted to frequenting “as part of [his] sexual attraction” to
little girls, id. at 365—a website Detective Palchak described
as a meeting place for persons seeking sex with children. Tr.
5/25/2010, at 144. Laureys chatted in explicit terms about
sexual conduct with a particular nine-year-old girl Jim said
frequented his apartment. Laureys asked for pictures of the girl
and pleaded with Jim, “you . . . NEED to let me hang out with
her[,] man.” Laureys then arranged to meet Jim at his
apartment. Viewed together, this evidence was more than
sufficient to support the jury’s findings that Laureys attempted
to persuade Jim to grant him sexual access to a child and then
travelled to the District for the purpose of engaging in sexual
conduct with her.

Judge Brown’s dissent raises two additional arguments
concerning a jury instruction pertaining to § 2422(b) and the
evidence required for a conviction under § 2423(b). We
address each in turn.
 7

B

The dissent objects sua sponte to the district court’s
instruction that the jury could convict under § 2422(b) if the
Government proved Laureys knowingly attempted to persuade
an adult to arrange for a child to engage in sexual activity.
According to the dissent, § 2422(b) requires intent to persuade
the minor herself, not an adult intermediary. That statute
provides,
Whoever, using . . . any . . . means of interstate
. . . 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 . . .
imprisoned not less than 10 years or for life.
18 U.S.C. § 2422(b).

We need not wade into this question of statutory
interpretation because Laureys has not raised it. 2 Laureys
asked “Jim” in no uncertain terms to grant him access to the
girl Jim claimed to be molesting, and that is the theory under
which the jury convicted him. It is not our duty to sift the trial
record for novel arguments a defendant could have made but
did not. See Potter v. District of Columbia, 558 F.3d 542, 553
(D.C. Cir. 2009) (Williams, J., concurring) (“[J]udges ‘are not
like pigs, hunting for truffles buried in briefs’ or the record.”

2
As the Government’s brief notes, Laureys “does not dispute
that the statute is violated where a defendant communicates with an
adult with access to the minor rather than directly with the minor.”
Appellee’s Br. at 30 n.16. Indeed, Laureys’s counsel declined Judge
Brown’s invitation at oral argument to make an issue of the
instruction. Oral Arg. 11:48–12:45.
 8

(quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.
1991))). Moreover, the instruction at issue was proposed
jointly by the defense and the prosecution, Dist. Ct. Docket No.
30, at 4–5, and “[i]f a defendant invites error by the district
court, he is ‘barred from complaining about it on appeal.’”
United States v. Ginyard, 215 F.3d 83, 88 (D.C. Cir. 2000)
(quoting United States v. Harrison, 103 F.3d 986, 992 (D.C.
Cir. 1997)).

Even if Laureys had properly challenged on appeal the
district court’s formulation of the requisite intent, our review
would be for plain error because he did not object to the jury
instructions at trial. See United States v. Bryant, 523 F.3d 349,
353 (D.C. Cir. 2008). Under that standard, Laureys would have
to establish “(1) a legal error that was (2) plain (a term that is
synonymous with clear or obvious), and that (3) affected his
substantial rights.” Id. (quotation marks and alterations
omitted). “Even if these three conditions are met, we will
correct a plain error as a matter of discretion only if the error
seriously affected the fairness, integrity or public reputation of
judicial proceedings.” Id. at 353–54 (quotation marks and
alterations omitted).

Laureys cannot make the basic threshold showing of plain
error. “Generally an error is plain if it contradicts circuit or
Supreme Court precedent.” In re Sealed Case, 573 F.3d 844,
851 (D.C. Cir. 2009). The district court’s instructions
contradicted no precedents of this Court or the Supreme Court.
Rarely do we find an error to be plain where “this court has not
ruled on the question.” United States v. Thomas, 896 F.2d 589,
591 (D.C. Cir. 1990). As the dissent has aptly pointed out in
another context, “issues of first impression present plain error
only when they tread upon ‘a well-established constitutional or
legal principle.’” United States v. Burroughs, 613 F.3d 233,
248 (D.C. Cir. 2010) (Brown, J., dissenting) (quoting United
 9

States v. Blackwell, 694 F.2d 1325, 1342 (D.C. Cir. 1982)).
Even if the dissent’s interpretation of § 2422(b) is correct—a
question we need not consider—we can hardly say it is
“well-established.” To the contrary, every circuit to consider
the issue has concluded a defendant can violate § 2422(b) by
communicating with an adult intermediary rather than a child
or someone believed to be a child. See United States v. Berk,
No. 09-2472, 2011 U.S. App. LEXIS 15501, at *19 (1st Cir.
July 27, 2011); United States v. Lanzon, 639 F.3d 1293, 1299
(11th Cir. 2011); United States v. Douglas, 626 F.3d 161,
164–65 (2d Cir. 2010); United States v. Nestor, 574 F.3d 159,
160–62 (3d Cir. 2009); United States v. Spurlock, 495 F.3d
1011, 1013–14 (8th Cir. 2007). Under the law of those circuits,
“inducing” a minor to engage in sexual activity does not
necessarily require direct communication with the minor; a
minor’s “assent might be obtained, for example, by persuading
a minor’s adult guardian to lead a child to participate in sexual
activity.” Douglas, 626 F.3d at 164; see, e.g., United States v.
Lee, 603 F.3d 904, 913 (11th Cir. 2010); Nestor, 574 F.3d at
162 n.4. We do not have to determine these courts are correct
to determine their view of the law is not plainly erroneous.

C

According to Judge Brown, we should also reverse
Laureys’s conviction under § 2423(b) because the evidence is
insufficient to prove Laureys believed he was going to meet a
child at Jim’s apartment. The statute provides that “[a] person
who travels in interstate commerce . . . for the purpose of
engaging in any illicit sexual conduct with another person shall
be . . . imprisoned not more than 30 years.” 18 U.S.C.
§ 2423(b). The dissent observes that, in response to a question,
Palchak admitted there was no implication in the chat that the
girl would be present at the initial meeting with Jim. Op. of
Brown, J., at 14. Even so, the jury reasonably found Laureys’s
 10

trip to meet Jim was for the purpose of engaging in illicit
sexual conduct with a minor. Reading the chat transcript in the
light most favorable to the Government, it supports a
reasonable inference that Jim would grant Laureys’s request to
let him “hang out” with the girl, if an initial meeting between
him and Jim was satisfactory. To that end, Jim suggested,
“maybe we could get a beer first to make sure we are
comfortable [and] then have fun at my [place].” Likewise,
Laureys blocked his cell phone number “[just] [un]til we
actually talk or [whatever].” A jury could reasonably conclude
that this maneuvering was in anticipation of the intended
sexual conduct with a minor.

III

Laureys claims he received ineffective assistance of
counsel because his trial lawyer failed to call some potential
witnesses to testify in his defense. Specifically, Laureys says
his lawyer should have secured the testimony of Laureys’s
psychologist and two men with whom Laureys had engaged in
sex-oriented online chats. This testimony, Laureys argues,
would have proven he lacked the requisite intent for each of his
convictions.
In order to succeed on a Sixth Amendment
claim of ineffective assistance of counsel, a
defendant must show two things: (1) that
counsel’s performance was deficient, and (2)
that the deficient performance prejudiced the
defense. To establish deficiency, he must show
his counsel’s representation fell below an
objective standard of reasonableness. To
establish prejudice, he must show that there is a
reasonable probability that, but for counsel’s
unprofessional errors, the result of the
proceeding would have been different.
 11

United States v. Anderson, 632 F.3d 1264, 1268 (D.C. Cir.
2011) (quotation marks, citations, and alteration omitted).

When a colorable claim of ineffective assistance is made
for the first time on direct appeal, this Court generally will
remand the claim for an evidentiary hearing “unless the trial
record alone conclusively shows that the defendant either is or
is not entitled to relief.” United States v. Rashad, 331 F.3d 908,
909–10 (D.C. Cir. 2003) (quotation marks omitted). Applying
that standard, we remand Laureys’s ineffective assistance
claims for analysis by the district court in the first instance.

IV

The district court sentenced Laureys to a ten-year term of
supervised release following imprisonment. Laureys
challenges the conditions of supervised release that prohibit
him, without the probation office’s prior approval, from
loitering in arcades and parks, among other places where
children congregate; possessing “any type of camera or video
recording device”; and “patroniz[ing] any place where
pornography or erotica can be accessed.” Laureys also
challenges the requirements that he keep a log of all internet
addresses he accesses and that he consent to disclosure to his
employer of the computer-related restrictions.

A sentencing court has discretion to impose any condition
of supervised release that is “reasonably related” to “the nature
and circumstances of the offense”; “the history and
characteristics of the defendant”; the deterrence of criminal
conduct; the protection of the public from the defendant; and
the effective provision of educational, vocational, medical, or
correctional services to the defendant; provided the condition
is consistent with the Sentencing Guidelines and “involves no
greater deprivation of liberty than is reasonably necessary.” 18
 12

U.S.C. §§ 3583(d), 3553(a); see United States v. Burroughs,
613 F.3d 233, 239–40 (D.C. Cir. 2010).

Because Laureys did not object at sentencing to the
conditions of his supervised release, our review is for plain
error. See Burroughs, 613 F.3d at 240. On plain error review,
we will vacate a condition of supervised release only if it is
“plainly out of sync with the statutory goals enumerated in
§ 3553(a).” Id. Under that standard, each of Laureys’s
challenges must fail.

His challenges to the restrictions on loitering in arcades
and parks and on possessing a camera are foreclosed by United
States v. Love, a child pornography case with similar facts to
Laureys’s, in which we upheld the same conditions on plain
error review. 593 F.3d 1, 14 (D.C. Cir. 2010) (citing United
States v. Sullivan, 451 F.3d 884 (D.C. Cir. 2006)). Especially
in light of Laureys’s requests for photographs of his
child-victims, we cannot conclude these conditions are
“plainly out of sync” with “the nature and circumstances of the
offense and the history and characteristics of the defendant,”
18 U.S.C. §§ 3583(d), 3553(a)(1), and with the need “to
protect the public from further crimes of the defendant,” id.
§ 3553(a)(2)(C).

For the same reason, Laureys cannot succeed in his
challenge to the ban on patronizing any place where
pornography can be accessed. In United States v. Sullivan, we
dismissed as “meritless” a challenge to the same condition by a
defendant convicted of possessing child pornography. 451
F.3d at 887, 896. Although Laureys’s crimes are different,
some studies have found a connection between pornography
and sex crimes, see Amatel v. Reno, 156 F.3d 192, 199–201
(D.C. Cir. 1998); see also United States v. Sebastian, 612 F.3d
47, 52 (1st Cir. 2010) (noting a possible “link between
 13

recidivism of sexual offenders and exposure to pornography”).
Moreover, Laureys’s suggestion to Jim that they meet at his
place “if you got anything fun we could watch” supports a
reasonable inference that pornography is relevant to Laureys’s
attempted predations. A condition of supervised release that
limits Laureys’s access to pornography is thus not “plainly out
of sync” with the § 3553(a) factors. Contrary to Laureys’s
interpretation of our decision in Love, that case does not
compel a different result. We vacated the condition in Love,
because it appeared only in the written judgment, 593 F.3d at
11, and “the written judgment form is a nullity to the extent it
conflicts with the previously pronounced sentence,” id. at 9
(quoting United States v. Booker, 436 F.3d 238, 245 (D.C. Cir.
2006)). In the absence of any precedent “that is even arguably
inconsistent” with the application of that condition to a child
predator, Laureys cannot show that the district court plainly
erred. Sullivan, 451 F.3d at 896.

Finally, the computer-related conditions of supervised
release are not plainly erroneous. For good reason, Laureys
does not challenge the most restrictive of these—a total ban on
the possession or use of a computer with internet access
without prior approval from the probation office. We upheld
the same condition on review for abuse of discretion in Love.
593 F.3d at 12. Because the defendant in that case had also
“solicited sex with Palchak’s fictitious daughter” online, we
concluded the broad restriction on internet access “[was]
properly tailored to the circumstances of the offense and [the
defendant’s] background, and it [was] reasonably necessary to
deter future misconduct and to protect children.” Id. The more
limited restrictions Laureys does challenge come nowhere
close to plain error. We vacated a similar log-keeping
requirement in United States v. Burroughs, because
“Burroughs did not use a computer to facilitate his crimes.”
613 F.3d at 242. But Laureys did. In the offenses underlying
 14

both the present case and his 2006 conviction, Laureys used
the internet to facilitate criminal sexual conduct with minors.
That Laureys will need the probation office’s permission to use
the internet is likely relevant to an employer’s decision to hire
him. So too are the requirements that he log his internet access
and that he “submit to periodic unannounced examinations of
. . . any computer accessed by him”—a condition Laureys does
not appeal. “We see no reason why potential employers should
not be made aware of [these] fact[s].” Burroughs, 613 F.3d at
246.

V

For the foregoing reasons, we reject Laureys’s challenges
to his conviction and to the conditions imposed on his term
supervised release, but we remand for an evidentiary hearing
on whether his trial counsel provided ineffective assistance.

So ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, concurring in part
and dissenting in part:
“To establish ineffective assistance of counsel, a criminal
defendant must show . . . that his lawyer made errors so serious
that counsel was not functioning as the counsel guaranteed . . .
by the Sixth Amendment, and that . . . there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” United
States v. Kelly, 552 F.3d 824, 829 (D.C. Cir. 2009) (ellipses in
original; internal quotation marks omitted). I respectfully
dissent from the remand for an evidentiary hearing on the sixth
amendment claim because I believe the “trial record alone
conclusively shows” the representation provided to Laureys was
not deficient and he suffered no prejudice. See Per Curiam
Opinion at 11 (quoting United States v. Rashad, 331 F.3d 908,
909–10 (D.C. Cir. 2003)).
Laureys contends that his trial counsel was ineffective by,
inter alia, not calling Frederick Berlin, a professor at Johns
Hopkins University School of Medicine and founder of a sexual
disorders clinic there, to testify at trial. The record indicates,
however, that Berlin had not finished his evaluation of Laureys
and was not prepared to testify at the time of the trial. At a
status conference on June 25, 2009, Laureys’s trial counsel
informed the court that he was trying to arrange for a
psychosexual evaluation of Laureys. Gov’t App. Tab 10. At
subsequent status and pretrial conferences held over eight
months—from August 10, 2009 to April 7, 2010—Laureys’s
trial counsel repeatedly informed the court that Berlin had not
completed his evaluation of Laureys. Gov’t App. Tabs 11-14.
At the April 7, 2010 conference, trial counsel informed the court
that Berlin would not complete his evaluation until August 2010.
The court then determined the trial could be delayed no longer
and ordered trial counsel to produce, within ten days, a letter,
affidavit or other writing from Berlin assuring the court of his
testimony in support of the defense’s theory. Gov’t App. Tab
14. The case proceeded to trial when trial counsel failed to do
 2

so. That Laureys’s trial counsel did not call an expert witness
who, according to the record, was not prepared to testify hardly
renders his representation deficient. That Laureys’s trial counsel
sought to use Berlin’s testimony for a purpose different from the
use his appellate counsel would have made of it does not change
the fact that, according to the record, Berlin never completed his
evaluation of Laureys and was not prepared to testify. In his
reply brief, Laureys asserts that “Dr. Berlin has confirmed to us
that he believed Mr. Laureys is suffering from paraphilia; that he
formed that opinion before trial . . . and that he would have
testified to that effect,” Reply Br. 14, but Laureys provides
nothing—such as an affidavit from Berlin—to support his
assertion.
Even assuming arguendo that the failure to call Berlin to
testify was deficient, there is no “reasonable probability that,
[had Berlin testified], the result of the proceeding would have
been different.” Kelly, 552 F.3d at 829. On appeal, Laureys
claims that Berlin would have opined that Laureys is a
paraphiliac and would have explained that a paraphiliac is
someone who suffers from “ ‘recurrent, intense sexually
arousing fantasies, sexual urges, or behaviors generally
involving 1) nonhuman objects, 2) the suffering or humiliation
of oneself or one’s partner, or 3) children or other nonconsenting
persons, that occur over a period of at least 6 months . . . [and
that] cause clinically significant distress or impairment in social,
occupational, or other important areas of functioning .’ ” United
States v. Carta, 592 F.3d 34, 38 (1st Cir. 2010) (ellipsis and
alteration in Carta) (quoting Am. Psychiatric Ass’n, Diagnostic
& Statistical Manual of Mental Disorders 522-23 (4th ed.
2000)); see Appellant’s Br. 43 n.116. In addition to explaining
paraphilia, Laureys contends Berlin would have testified that a
“paraphiliac can suffer from pedophilia and yet maintain sexual
relations with adults.” Id. at 43. Finally, according to Laureys,
Berlin would have testified that paraphiliacs have a tendency to
use the internet “to engage in wildly inappropriate remarks” and
 3

“to engage in fantastic sexual discussions with anonymous
correspondents.” Id. at 44-45.
I cannot fathom how Berlin’s proposed testimony could
have possibly aided Laureys’s case. A description of paraphilia
would have simply emphasized Laureys’s “ ‘recurrent, intense
sexually arousing fantasies, sexual urges, or behaviors generally
involving . . . children or other nonconsenting persons.’ ” Carta,
592 F.3d at 38 (quoting Am. Psychiatric Ass’n, Diagnostic &
Statistical Manual of Mental Disorders 522-23 (4th ed. 2000)).
Nothing in the quoted description of paraphilia from the
Diagnostic and Statistical Manual of Mental Disorders suggests
an inclination toward homosexuality. Nor is there any reason to
believe Berlin’s testimony that a paraphiliac can suffer from
pedophilia but maintain sexual relations with adults would have
helped Laureys’s case. Nothing in Berlin’s purported testimony
calls into question the jury’s conclusion that Laureys intended
to have sexual relations with the 9-year-old girl. That Berlin’s
testimony might have led the jury to conclude that Laureys also
intended to have sexual relations with Jim P does not create “a
reasonable probability that . . . the result of the proceeding
would have been different.” Kelly, 552 F.3d at 829 (internal
quotation marks omitted). Finally, Berlin’s testimony about the
internet tendencies of paraphiliacs would have strengthened the
Government’s—not Laureys’s—case because Laureys went well
beyond using the internet to make inappropriate remarks or
engage in fantastic sexual discussions with anonymous
correspondents. He took the significant further step of arranging
to meet Jim P—and, a reasonable jury could conclude, the 9-
year-old girl—and driving to the location Jim P gave him.
Finally, and crucially, any marginal benefit Laureys might
have derived from Berlin’s testimony could never, in my view,
erase the irremediable damage Laureys did through his own
testimony. I believe there is no reasonable probability that
Berlin’s proposed testimony—as weak as it is—would have led
 4

any reasonable juror who heard Laureys’s disturbing and
graphic testimony to acquit him. By testifying, Laureys was
truly the author of his own misfortune.
 BROWN, Circuit Judge, dissenting in part: The district
court instructed a jury to convict Brandon Laureys of
attempted enticement of a child if the Government proved
Laureys tried to persuade an adult to grant him access to a
minor. The district court also allowed the jury to convict
Laureys of crossing state lines to engage in sexual conduct
with a minor, absent any evidence Laureys expected the
fictitious child to be present at his destination. Because the
jury instruction was plainly erroneous and the evidence
insufficient as a matter of law, I would reverse Laureys’s
convictions and his twenty-year prison sentence. 1

I

Count One of the indictment charged Laureys with using
the internet in an attempt to persuade a minor to engage in
criminal sexual activity. The statute under which he was
convicted provides,
Whoever, using . . . any . . . means of interstate
. . . commerce . . . knowingly persuades,
induces, entices, or coerces any individual who
has not attained the age of 18 years, to engage

1
Although I would not reach Laureys’s ineffective assistance
claim or his challenges to the conditions of supervised release,
Judge Henderson’s partial dissent means my vote is necessary to
decide the ineffective assistance claim. Because I agree with the
lead opinion’s statement of the law on that point, I join that portion
of the opinion to break the tie and remand for an evidentiary
hearing on Laureys’s ineffective assistance claim. See generally
David Post & Steven C. Salop, Rowing Against Tidewater: A
Theory of Voting by Multijudge Panels, 80 GEO. L.J. 743, 745
(1992) (arguing issue-by-issue voting is more consistent than
outcome voting “with an appellate court’s role of providing
guidance to lower courts and the community as a whole as to the
legal consequences of specific actions”).
 2

in . . . any sexual activity for which any person
can be charged with a criminal offense, or
attempts to do so, shall be . . . imprisoned not
less than 10 years or for life.
18 U.S.C. § 2422(b). Each verb of the statutory actus reus
(“persuades, induces, entices, or coerces”) has a person as its
object, and the statutory text leaves no doubt but that the
personal object must be a minor.

The district court nevertheless instructed the jury to
convict Laureys under § 2422(b) if he “intended to persuade
an adult to cause a minor to engage in unlawful sexual
activity.” Dist. Ct. Docket No. 52, at 15–16 (emphasis added).
The district court emphasized that “[d]irect communication
with a child is unnecessary,” because “[t]he government must
only prove that the defendant believed that he was
communicating with someone who could arrange for the child
to engage in unlawful sexual activity.” Id. at 15. These jury
instructions thwart the plain meaning of § 2422(b) by
replacing the statutory object (“any individual who has not
attained the age of 18 years”) with its opposite (“an adult”).

On appeal, Laureys argues § 2422(b) requires intent to
persuade a minor, Appellant’s Br. at 36, but he does not
directly confront the erroneous jury instruction. Nor did he
object to it in the district court. As the court explains, we do
not ordinarily consider legal arguments that are forfeited in
the district court and on appeal. Maj. Op. at 7–8. But this is
not an ordinary case of forfeiture. Federal Rule of Criminal
Procedure 52(b) provides, “[a] plain error that affects
substantial rights may be considered even though it was not
brought to the court’s attention.” We invoke Rule 52(b), for
example, “when the weakness of the evidence against
defendant indicates that a serious injustice was done.” United
States v. Rhodes, 886 F.2d 375, 379 (D.C. Cir. 1989) (quoting
 3

United States v. Baker, 693 F.2d 183, 187 (D.C. Cir. 1982)).
Thus, “even though an issue was not raised either at trial or
on appeal,” if it “is one which affects substantial rights and
seriously affects the fairness of the judicial proceedings, then
we should reverse [the defendant’s] conviction on our own
motion.” Id. Under that standard, I would reverse Laureys’s
conviction for enticement of a minor, as it was based on a
plainly erroneous jury instruction. See United States v. Alston,
551 F.2d 315, 320 n.23 (D.C. Cir. 1976) (“Failure on the part
of a trial court in a criminal case to instruct on all essential
questions of law involved in the case, whether requested or
not would clearly affect substantial rights within the meaning
of Rule 52(b).” (quotation marks omitted)). That Laureys’s
trial counsel shares responsibility with the Government for
proposing an erroneous instruction does not mean we must
close our eyes to the district court’s plain error. See United
States v. Wiggins, 530 F.2d 1018, 1020 (D.C. Cir. 1976)
(noting that plain error review is appropriate even where the
defendant’s trial counsel “specifically requested and
approved” the challenged jury instruction).

The court does not attempt to defend the district court’s
statement of the law on the merits, and there is no dispute
that—if it is erroneous—the district court’s jury instruction
was prejudicial. 2 The court disagrees only with my conclusion
that any error was plain. Maj. Op. at 8–9.

2
Had the jury been correctly instructed, it could not
reasonably have found Laureys guilty under § 2242(b). Even if
Laureys intended at some point in the future to entice the fictitious
child herself, there is no evidence Laureys intended to use a facility
of interstate commerce to do so. Cf. United States v. Spurlock, 495
F.3d 1011, 1014 (8th Cir. 2007) (“We conclude that Spurlock
intended to entice minor girls to have sex with him, and that his
conversations with their purported mother were a substantial step
toward that end.”); id. at 1012 (“Detective Wilson, posing as [their
 4

It is an open question in this circuit whether § 2422(b)
permits a conviction for persuasion of an adult. I say it is an
open question only in the sense that we have never addressed
it; the plain meaning of the statute leaves no room for doubt
about the answer. Section 2422(b) is unambiguously directed
at persuasion of a minor. Under these circumstances, the lack
of controlling precedent does not save the jury instruction
from plain error. “Even absent binding case law, . . . an error
can be plain if it violates an absolutely clear legal norm, for
example, because of the clarity of a statutory provision.” In re
Sealed Case, 573 F.3d 844, 851 (D.C. Cir. 2009) (quotation
marks omitted); see also United States v. Burroughs, 613 F.3d
233, 244 (D.C. Cir. 2010) (“The lack of case law squarely on
point does ‘militate against’ finding plain error, but it is not
dispositive.” (citation and quotation marks omitted)).

The court cites out-of-circuit precedent in an effort to
prove any error in the district court’s instruction was not
plain. I am not persuaded. Only one circuit court has ever
held § 2422(b) criminalizes the attempt to persuade an adult
to cause a child to engage in sexual conduct. See United
States v. Murrell, 368 F.3d 1283, 1287 (11th Cir. 2004). That
precedent is on weak footing. The Murrell panel mistakenly
assumed § 2422(b) penalizes any attempt to solicit sex with a
minor. See id. at 1287. A subsequent panel of the same court
hinted Murrell’s analysis was based on a misreading of the
statute. United States v. Lee, 603 F.3d 904, 916 (11th Cir.
2010). Returning to the statute’s plain meaning, the Lee panel
held that “the government must prove that the defendant
intended to cause assent on the part of the minor.” Id. at 914;

mother,] pretended to allow the girls to chat directly with
Spurlock.”). And there is no evidence Laureys attempted to entice
the fictitious girl through his online communication with “Jim.” Cf.
id. at 1014 (“[Spurlock] admitted at trial that he ‘tried to persuade
those two girls through their mother to engage in sexual acts.’”).
 5

accord United States v. Lanzon, 639 F.3d 1293, 1299 (11th
Cir. 2011). Without explicitly overturning Murrell, Lee
charitably construed “[t]he holding of Murrell” to be “that a
reasonable jury could have found that Murrell attempted to
‘induce’ a minor to engage in sexual activity with him
because he ‘attempted to stimulate or cause the minor to
engage in sexual activity with him.’” Lee, 603 F.3d at 916
(quoting Murrell, 368 F.3d at 1287).

The other courts that have affirmed convictions under
§ 2422(b) based on a defendant’s communication with an
adult have followed the reasoning of Lee, not Murrell. That
is, they have required proof the defendant attempted to cause
assent on the part of a minor, not the adult intermediary. In
each of these cases, the defendant’s communication with an
adult was either a vehicle through which the defendant
attempted to obtain the child’s assent, 3 or a substantial step

3
See United States v. Berk, No. 09-2472, 2011 U.S. App.
LEXIS 15501, at *18, 19–20 (1st Cir. July 27, 2011) (“Section
2422(b) criminalizes an intentional attempt to achieve a mental
state—a minor’s assent . . . . The trial court could easily have found
that the explicit communications with a person whom Berk thought
was the father of a 12-year old girl about ‘renting her out,’ along
with the concomitant request to see what the girl thought of the
idea, were part of an attempt to achieve the requisite mental state in
the minor.”); United States v. Douglas, 626 F.3d 161, 164 (2d Cir.
2010) (“[T]he statute criminalizes obtaining or attempting to obtain
a minor’s assent to unlawful sexual activity. Such assent might be
obtained, for example, by persuading a minor’s adult guardian to
lead a child to participate in sexual activity.” (citation omitted));
Spurlock, 495 F.3d at 1014; see also United States v. Nestor, 574
F.3d 159, 162 n.4 (3d Cir. 2009) (suggesting in dicta that criminal
persuasion may not require direct communication with a minor
because “[s]exual predators can and do . . . attempt to persuade
children to engage in sexual activity through the victim’s parents or
guardians”).
 6

toward persuasive communication with the child herself. 4
Laureys’s case does not require us to decide whether these
courts were right to hold the requisite attempt to persuade a
minor may be proven exclusively by communication with an
adult. All of these courts agree § 2422(b) requires an attempt
to bend the child-victim’s will. They offer no support
therefore to the district court’s jury instruction, which
permitted a conviction for persuading an adult, absent any
effort to win the child’s assent. Only the discredited Murrell
opinion took the view that attempting to persuade an adult to
cause a child to engage in sexual conduct, without more,
satisfies the elements of § 2422(b).

More to the point, the errors of other courts do not
immunize the district court’s jury instruction on plain error
review.
[W]e have recognized that a division of
authority on a given point may provide cause
to question the plainness of an error, but we
did so in cases lacking the kind of clear
statutory language at issue here. Moreover,
[this court has] not hesitated to deem an error
involving clear language plain, even when
another circuit considered the provision
ambiguous enough to defeat a finding of plain
error.
In re Sealed Case, 573 F.3d 844, 851–52 (D.C. Cir. 2009)
(citations omitted). In In re Sealed Case, we explicitly
rejected “the government’s view [that] [a] circuit split on [the

4
See United States v. Nestor, 574 F.3d 159, 162 (3d Cir. 2009)
(“He took substantial steps calculated to put him into direct contact
with a child so that he could carry out his clear intent to persuade,
induce, entice, or coerce the child to engage in sexual activity.”);
Spurlock, 495 F.3d at 1014.
 7

relevant] issue necessarily means that the error could not have
been plain.” Id. at 851. We found plain error in the district
court’s treatment of rehabilitation as justifying a longer prison
term despite precedent from the Eighth and Ninth Circuits
supporting the district court’s decision. See id. at 848–51.
Here, as in In re Sealed Case, the relevant statute “speaks
with absolute clarity” on the subject of the district court’s
decision, id. at 851, so the contrary view of one out-of-circuit
case does not save the jury instruction from plain error.

In Murrell, the Eleventh Circuit held that “[b]y
negotiating with the purported father of a minor, [the
defendant] attempted to stimulate or cause the minor to
engage in sexual activity with him” and therefore his
“conduct fits squarely within the definition of ‘induce.’” 368
F.3d at 1287. The Eleventh Circuit noted that “induce” could
mean either “‘to lead or move by influence or persuasion; to
prevail upon,’ or alternatively, ‘to stimulate the occurrence of;
cause.’” Id. (citing AMERICAN HERITAGE DICTIONARY OF THE
ENGLISH LANGUAGE 671 (1981)). The Murrell panel decided
Congress must have intended the second definition, because
the first was “essentially synonymous with the word
‘persuade’” and would make that word in the statute
superfluous. Id. On this view, the Government need not prove
the defendant tried to win a child’s assent; an attempt to
persuade the child’s guardian will suffice. See id.

As the district court correctly observed, “there is no
equivalent of Murrell in this circuit.” Tr. 5/26/2010, at 286.
Despite its concern about “[t]he way [§ 2422(b)’s] language
has to be parsed and chopped and sliced and diced in order to
make everything fit,” id., the district court allowed Laureys to
be convicted under Murrell’s plainly erroneous interpretation.
We should reject Murrell’s flawed reading of § 2422(b) for
four reasons.
 8

First, the second definition of “induce” (“to stimulate the
occurrence of; cause”) is incompatible with that word’s
statutory context. In § 2422(b), the verb “induce” has a person
as its object—“any individual who has not attained the age of
18 years.” 18 U.S.C. § 2422(b). But “induce” only means
“cause” when its object is inanimate. See OXFORD ENGLISH
DICTIONARY ONLINE, “induce,” def. 4(a) (listing examples),
http://www.oed.com/view/Entry/94758 (last visited August 9,
2011). For example, one can induce a chemical reaction or
induce labor without bringing about a person’s assent. By
contrast, when “induce” is used with a personal object, it has
the first meaning. See id. def. 1 (“To lead (a person), by
persuasion or some influence or motive that acts upon the
will, to (into, unto) some action, condition, belief, etc.; to lead
on, move, influence, prevail upon (any one) to do
something.”). For example, one does not induce a person to
donate to a charity by forcibly seizing her money, but by
convincing her that it is the right thing to do.

Second, the word “induce,” in its first definition, is not
“essentially synonymous with the word ‘persuade,’” as the
Murrell court said it was. 368 F.3d at 1287. The word
“persuade” suggests the use of reason, but the word “induce,”
though it can bear that meaning, may signify any force, such
as trickery, that acts upon the will. For example, one may
induce a person to donate to one charity by convincing her
that she is donating to another. Moreover, Congress often
uses multiple words with overlapping meaning to capture a
broad swath of conduct. That the most sensible definition of
“induce” overlaps with “persuade” and “coerce” does not
render it superfluous. Cf. Moskal v. United States, 498 U.S.
103, 120–21 (1990) (Scalia, J., dissenting) (“Since iteration is
obviously afoot in the relevant passage, there is no
justification for extruding an unnatural meaning out of
‘falsely made’ simply in order to avoid iteration. The entire
 9

phrase ‘falsely made, forged, altered, or counterfeited’ is self-
evidently not a listing of differing and precisely calibrated
terms, but a collection of near synonyms which describes the
product of the general crime of forgery.”).

Third, the statutory history of § 2422(b) confirms that
“induce” does not mean simply “cause,” but involves an act
directed at bending the will of another person—here, a minor.
The modern enticement statute traces its origin to the Mann
Act of 1910, which used “induce” and “cause” in the same
sentence.
[A]ny person who shall knowingly persuade,
induce, entice, or coerce any woman or girl
under the age of eighteen years from any State
. . . to any other State . . . , with the purpose
and intent to induce or coerce her . . . to
engage in prostitution or debauchery, or any
other immoral practice, and shall in
furtherance of such purpose knowingly induce
or cause her to go and to be carried or
transported as a passenger in interstate
commerce . . . shall be deemed guilty of a
felony . . . .
White Slave Traffic (Mann) Act, ch. 395, § 4, 36 Stat. 825,
826 (1910) (emphasis added). If “induce” meant the same
thing as “cause,” then Congress would not have used these
words in the alternative in the phrase “induce or cause.” That
phrase suggests that when “induce” is used elsewhere in the
statute, it does not simply mean “cause,” but instead has in
common with “persuade,” “entice,” and “coerce” an element
of mental force. See Cal. Indep. Sys. Operator Corp. v.
FERC, 372 F.3d 395, 400 (D.C. Cir. 2004) (“The canon of
statutory construction noscitur a sociis, i.e., a word is known
by the company it keeps[,] is often wisely applied where a
 10

word is capable of many meanings in order to avoid giving
unintended breadth to the Acts of Congress.” (quotation
marks omitted)); see, e.g., Valdes v. United States, 475 F.3d
1319, 1323–24 (D.C. Cir. 2007) (applying the canon to one
statutory term in a series of six related words).

Finally, the Murrell court reasoned 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.” 368 F.3d at 1287. Not so.
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.
Congress has already provided a penalty for soliciting a child
under age sixteen for sex crimes. See 18 U.S.C. § 2425. And
other provisions penalize transporting “any individual” for
sex crimes, id. § 2421, persuading “any individual” to travel
for sex crimes, id. § 2422(a), transporting a minor for sex
crimes, id. at § 2423(a), arranging such transportation, id.
§ 2423(d), traveling with the intent to engage in illicit sexual
conduct, id. § 2423(b), engaging in the illicit sex act itself, id.
§§ 2241–44, 2423(c), and attempting or conspiring to do so,
id. at 2423(e). Clearly, Congress has not left prosecutors
powerless against child predators who do not entice their
victims on the internet. Section 2422(b) is unique in targeting
efforts to overbear the wills of children online. We have every
reason to presume Congress meant what it said. Congress has
not been reticent to amend § 2422(b), and each successive
amendment has made the statute more punitive. See United
States v. Dwinells, 508 F.3d 63, 69 (1st Cir. 2007). 5 If
5
See Telecommunications Act of 1996, Pub. L. No. 104-104,
§ 508, 110 Stat. 56, 137 (adding subsection (b) to § 2422 and
establishing a maximum imprisonment term of ten years);
 11

Congress wishes to expand § 2422(b) to penalize persuading
an adult to grant sexual access to a child, Congress does not
need our help rewriting the statute.

II

Count Two of the indictment charged Laureys with
driving from Maryland to the District of Columbia “for the
purpose of engaging in . . . illicit sexual conduct,” 18 U.S.C.
§ 2423(b); namely, a sex act with a minor. Before denying
Laureys’s motion for a judgment of acquittal, Judge
Robertson commented with admirable forthrightness on the
weakness of the Government’s case:
As for the interstate travel with intent count,
. . . if I were a juror, I would probably find a
reasonable doubt as to whether the defendant
thought there was going to be a girl in that
apartment or not . . . . But I think it’s a jury
question, and I’m just making this record of
my own concern about this statute and its razor
thin application to the facts of this case in case
the jury convicts and another court wants to
look at it.

Protection of Children from Sexual Predators Act of 1998, Pub. L.
No. 105-314, § 102, 112 Stat. 2974, 2975–76 (increasing the
maximum term to fifteen years); Prosecutorial Remedies and Other
Tools to End the Exploitation of Children Today Act of 2003, Pub.
L. No. 108-21, § 103(a)(2)(B) & (b)(2)(A), 117 Stat. 650, 652, 653
(2003) (increasing the maximum term to thirty years and adding a
five-year mandatory minimum); Adam Walsh Child Protection and
Safety Act of 2006, Pub. L. No. 109-248, § 203, 120 Stat. 587, 613
(increasing the maximum term to life and increasing the mandatory
minimum to ten years).
 12

Tr. 5/26/2010, at 287. Because Laureys moved for a judgment
of acquittal, the district court’s hesitant finding about the
sufficiency of the evidence is entitled to no deference.
Reviewing de novo, and viewing the evidence in the light
most favorable to the government, I would reverse Laureys’s
conviction.

“The crime of attempt . . . consists of (1) an intent to do
an act or to bring about certain consequences which would in
law amount to a crime; and (2) an act in furtherance of that
intent which . . . goes beyond mere preparation.” United
States v. Washington, 106 F.3d 983, 1005 (D.C. Cir. 1997)
(quoting 2 WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR.,
SUBSTANTIVE CRIMINAL LAW 18 (1986)). Assuming that
Laureys believed the girl existed, that Laureys believed Jim
would allow him to engage in sexual conduct with her, and
that Laureys intended to do so at his earliest opportunity, the
Government still failed to show Laureys took a substantial
step toward the commission of that crime.

A substantial step is one that manifests “a true
commitment toward completing the crime” and
“demonstrat[es] that the crime will take place unless
interrupted by independent circumstances.” United States v.
Hofus, 598 F.3d 1171, 1174 (9th Cir. 2010) (quotation marks
omitted); see also United States v. Ramirez, 348 F.3d 1175,
1180 (10th Cir. 2003) (“A substantial step is an appreciable
fragment of a crime and an action of such substantiality that,
unless frustrated, the crime would have occurred. The step
must be strongly corroborative of the firmness of the
defendant’s criminal intent and must unequivocally mark the
defendant’s acts as criminal.” (quoting United States v. Smith,
264 F.3d 1012, 1016 (10th Cir. 2001)); United States v.
Bailey, 228 F.3d 637, 640 (6th Cir. 2000) (“It must be
necessary to the consummation of the crime and be of such a
 13

nature that a reasonable observer, viewing it in context could
conclude beyond a reasonable doubt that it was undertaken in
accordance with a design to violate the statute.” (quoting
United States v. Manley, 632 F.2d 978, 987–88 (2d Cir.
1980)). As the district court put it to the jury, a substantial
step is part of a “course of conduct planned to culminate in
the commission of the crime.” Dist. Ct. Docket No. 52, at 16;
accord United States v. Resendiz-Ponce, 549 U.S. 102, 107
(2007); United States v. Duran, 96 F.3d 1495, 1508 (D.C. Cir.
1996).

“Important to a substantial-step assessment is an
understanding of the underlying conduct proscribed by the
crime being attempted.” United States v. Farhane, 634 F.3d
127, 148 (2d Cir. 2011). Here, the underlying conduct is
interstate travel for the purpose of sexual conduct with a
minor. Driving to the address Jim provided would be a
substantial step toward the commission of that conduct only if
Laureys intended that drive to culminate in sex with a minor.
If § 2423(b) proscribed interstate travel with
the mere abstract intent to engage in sexual
activity with a minor at some undetermined
point in the future, this would be a more
difficult case. . . . By requiring that the
interstate travel be ‘for the purpose of’
engaging in illicit sexual activity, Congress has
narrowed the scope of the law to exclude mere
preparation, thought or fantasy; the statute
only applies when the travel is a necessary step
in the commission of a crime.
United States v. Tykarsky, 446 F.3d 458, 471 (3d Cir. 2006).

The evidence is insufficient as a matter of law, because it
cannot possibly prove Laureys intended to have sex with
 14

anyone but Jim during the relevant trip. Even if Laureys
entertained some hope that he might have sex with a child in
the future, his drive to meet with Jim was at best “mere
preparation” for a future crime. See United States v. Bolden,
514 F.2d 1301, 1307 n.10 (D.C. Cir. 1975) (“‘[C]asing’ [a]
store preparatory to a later attempt to rob” would be “mere
preparation” for the robbery, not “an indictable attempt.”).

There is no evidence whatsoever that Laureys was
driving to the District to have sex with a child. Detective
Palchak admitted there was “no implication anywhere that the
girl [was] going to be at this setup meeting” at Jim’s place.
Tr. 5/25/2010, at 215. Jim said only that his girlfriend “comes
over a lot” and that he had been “messing around” with her
nine-year-old daughter. Indeed, the chat was remarkably
silent about Jim’s ability and intent to procure the victim.
Laureys was focused instead on arranging a meeting between
him and Jim. Unlike Laureys’s very practical arrangements to
meet Jim, his lewd statements about the fictitious girl were
never more than hypothetical. Merely proposing illegal sexual
conduct at some unspecified point in the future is not a
substantial step toward its commission. See United States v.
Gladish, 536 F.3d 646, 649–50 (7th Cir. 2008). After
planning their meeting at Jim’s apartment, and for the last ten
minutes of the chat, neither he nor Laureys ever mentioned
the fictitious girl again. Instead, Laureys asked Jim, “you got
anything fun we could watch or something while we’re
there[?]” Detective Palchak admitted Laureys did not bring up
the girl during their phone calls. See Tr. 5/25/2010, at 175–76,
223.

The most likely interpretation of this evidence is that
Laureys assumed the girl—if she even existed—would not be
present at this meeting. Laureys’s assumption was reasonable,
since Detective Palchak’s statements as “Jim” were consistent
 15

with a sexual liaison between two men, not a prelude to child
molestation. He invited Laureys to “get a beer first to make
sure we are comfortable then have fun at my [place].” And he
described himself physically: “I’m a white dude about 6 foot
190 [¶] 38 [¶] you[?]” Any reasonable juror would have
entertained grave doubts about Laureys’s intent to engage in
sexual conduct with a real child upon his arrival in the
District.

III

This is a disturbing case. Laureys’s chat with Detective
Palchak and his testimony at trial demonstrate moral
depravity, but they do not meet the Government’s burden to
prove the requisite criminal intent. I would reverse Laureys’s
convictions. Therefore, I respectfully dissent.