FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10076
Plaintiff-Appellee, D.C. No.
v. 3:08-cr-00022-LRH-
TERRANCE HOFUS, VPC-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted
January 11, 2010—San Francisco, California
Filed March 19, 2010
Before: John T. Noonan, Michael Daly Hawkins and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Hawkins;
Dissent by Judge Noonan
4555
4558 UNITED STATES v. HOFUS
COUNSEL
Michael Powell, Office of the Federal Public Defender, Reno,
Nevada, for the defendant-appellant.
Elizabeth Olson, Office of the United States Attorney, Reno,
Nevada, for the plaintiff-appellee.
UNITED STATES v. HOFUS 4559
OPINION
HAWKINS, Circuit Judge:
Appellant Terrance Hofus (“Hofus”) appeals his jury trial
conviction for one count of attempting to coerce and entice a
minor to engage in sexual activity, in violation of 18 U.S.C.
§ 2422(b). He contends the jury instructions inadequately
defined the “substantial step” requirement and failed to
require unanimity as to what constituted that substantial step.
Hofus also argues that the district court erroneously excluded
testimony from his expert that Hofus valued the sexual texting
“in fantasy alone” and was unlikely to actually engage in sex
with the minor victim. We affirm his conviction for the rea-
sons set forth below.
FACTS AND PROCEDURAL HISTORY
In February 2008, several 12 to 16-year-old girls had a
sleep over party in Nevada. During the party, two of the
young girls, M.M. and B.T., took nude photos of themselves
and sent them by cell phone to a 15-year-old boy, T.H.
Although unclear exactly how Hofus learned about the photos,1
after the party B.T. began receiving text messages from a
number she did not recognize. From that number, Hofus sent
her various sexual messages and told her that unless she and
M.M. met with him to do sexual things, he would send the
nude photos to everyone they knew and post them on the
Internet.
After the party, M.M. also exchanged text messages with
Hofus, thinking that he was the 15-year-old boy. When these
texts became very sexual, M.M. told her mother and older sis-
ter about them. M.M.’s sister called the number and told him
to stop calling her 14-year-old sister. Hofus also left several
voicemail messages on M.M.’s phone.
1
Hofus had recently acquired the phone number from a 13-year-old boy.
4560 UNITED STATES v. HOFUS
Although it was later determined that Hofus’s phone did
not give him the ability to actually view the nude photos, he
made the girls believe he had seen them and had them in his
possession. For example, Hofus sent B.T. a text that he was
at a Kinko’s copy shop and had found a way to enlarge cell
phone images to poster size: “think that if we printed up the
2 of u girls and hung them up at the high skol that it wud help
u keep u r promise to me they look hot there a lot detail big.”
B.T. eventually told a teacher about the problem, and, ulti-
mately, the FBI took over the investigation. Special Agent
Anna Brewer took M.M.’s cell phone and downloaded the
voicemail messages from Hofus. Brewer also took B.T.’s cell
phone and found several text messages from Hofus, including
one which said “I am ok with not having sex it wud help me
get rid of the urge if we could just talk like the 3 of us did
before that’s all want” and another which said “come on babe
lets do this u know u want to be with me.”
Agent Brewer posed as B.T. and began texting with Hofus.
Brewer recorded all text messages and voicemails that were
received on B.T.’s phone. Brewer asked for the pictures back;
Hofus asked what she was willing to do to get them. Later,
Hofus apparently became suspicious and asked her “Why are
u talking 2 the police” and “some one knows a detective.”
Hofus asked B.T. to promise that whatever they might do
would stay between them — “no friends parents police.” He
insisted on talking to B.T. on the phone to arrange a meeting
(“We need to talk on phone how far can u travel” “we need
to talk tonight or forget it”).
With her parents’ permission, B.T. spoke to Hofus on a
monitored phone and arranged to meet him at the Parklane
movie theater to see the movie Juno. Following their conver-
sation, he continued to send her sexually explicit texts asking
about her sexual experiences.
On March 16, the FBI set up surveillance at the Parklane
movie theater. At noon, Hofus sent a text asking, “Are u
UNITED STATES v. HOFUS 4561
going to let me taste u naked.” He also sent a message sug-
gesting B.T. go to the McDonald’s near the theater instead.
When the agents went to the McDonalds, they noticed Hofus
sitting on a bus stop bench across the street from the theater,
using his cell phone, and arrested him.
Hofus was charged with a single count of attempted coer-
cion and enticement of a minor to engage in sexual activity
in violation of 18 U.S.C. § 2422(b). After a four-day trial, a
jury found him guilty, and he was sentenced to 130 months
imprisonment.
DISCUSSION
I. Jury Instructions
We review the district court’s formulation of jury instruc-
tions for an abuse of discretion, United States v. Ortega, 203
F.3d 675, 684 (9th Cir. 2000), and we review de novo
whether the instructions misstated or omitted an element of
the charged offense. United States v. Stapleton, 293 F.3d
1111, 1114 (9th Cir. 2002). The “relevant inquiry is whether
the instructions as a whole are misleading or inadequate to
guide the jury’s deliberation.” United States v. Frega, 179
F.3d 793, 806 n.16 (9th Cir. 1999).
A. Substantial Step
[1] Because Hofus was charged with an attempted viola-
tion of § 2422, the government had to prove that Hofus not
only intended to commit a crime, but that he took a “substan-
tial step” toward its commission. See Braxton v. United
States, 500 U.S. 344, 349 (1991); United States v. Acuna, 9
F.3d 1442, 1447 (9th Cir. 1993). We have previously
explained the “substantial step” concept: “the defendant’s
actions must go beyond mere preparation, and must corrobo-
rate strongly the firmness of the defendant’s criminal intent.”
United States v. Nelson, 66 F.3d 1036, 1042 (9th Cir. 1995);
4562 UNITED STATES v. HOFUS
see also id. (“ ‘The conduct must be necessary to the consum-
mation of the crime and of such nature that a reasonable
observer, viewing it in context, could conclude beyond a rea-
sonable doubt that it was undertaken in accordance with a
design to violate the statute.’ ”) (quoting Acuna, 9 F.3d at
1447). In Nelson, we also described the substantial step as
demonstrating a “true commitment” towards completing the
crime, id. at 1042 (internal quotation marks omitted), as an
“appreciable fragment” of a crime, id. (internal quotation
marks omitted), and as “unequivocally demonstrating that the
crime will take place unless interrupted by independent cir-
cumstances,” id.
[2] In this case, the district court instructed the jury that it
must find Hofus “took some action that was a substantial step
toward bringing about the persuasion, inducement, or entice-
ment to engage in sexual activity,” and, in accordance with
Nelson and the language of Ninth Circuit Model Criminal
Instruction 5.3, that “mere preparation is not a substantial
step.” The court also instructed that to constitute a substantial
step, “the defendant’s conduct must have: one, advanced the
criminal purpose charged; and, two, verified the existence of
that purpose.” See United States v. Goetzke, 494 F.3d 1231,
1235-36 (9th Cir. 2007) (quoting Walters v. Maass, 45 F.3d
1355, 1358-59 (9th Cir. 1995)).
Hofus, on the other hand, requested an instruction using
different language from Nelson, requiring “an action of such
substantiality that, unless frustrated, the crime would have
occurred.” See Nelson, 66 F.3d at 1042. Hofus contends the
district court abused its discretion by refusing his instruction
because it was a correct statement of the law under Nelson.
A defendant, however, is not entitled to an instruction with
wording of his own choosing. United States v. Ferris, 719
F.2d 1405, 1408 (9th Cir. 1983). Rather, the question before
us is not whether the instruction Hofus posed was correct, but
whether the instruction actually given was misleading or inad-
UNITED STATES v. HOFUS 4563
equate to guide the jury’s decision. United States v. Tatoyan,
474 F.3d 1174, 1179 (9th Cir. 2007) (quoting United States
v. Fernandez, 388 F.3d 1199, 1246 (9th Cir. 2004)).
[3] Here, the court’s instruction was an accurate descrip-
tion of the law, see Acuna, 9 F.3d at 1447; Nelson, 66 F.3d
at 1042, and mirrored the definition of substantial step in the
model instruction, Model. Crim. Jury Instr. 9th Cir. 5.3.
Moreover, we have approved this instruction as adequate to
inform the jury of the requirements on the charge of attempt.
See United States v. Mincoff, 574 F.3d 1186, 1196-97 & n.2
(9th Cir. 2009).
[4] Hofus argues that more guidance was needed on the
facts of this case because he had never actually met the young
girls. He urges that his case is thus more like the Seventh Cir-
cuit case of United States v. Gladish, 536 F.3d 646 (7th Cir.
2008) (sexual conversations online with stranger, including
discussions of possibly meeting in person, insufficient sub-
stantial step), than the Ninth Circuit case of United States v.
Goetzke, 494 F.3d 1231 (9th Cir. 2007) (defendant initiating
conversation with young boy he knew, describing sexual acts,
and proposing a rendevous is sufficient substantial step).
However, neither case is particularly helpful to Hofus because
(1) both of those cases involved challenges to the sufficiency
of the evidence and not whether the jury was adequately
instructed on the substantial step concept, and (2) in both
cases, the defendant had only exchanged written correspon-
dence or electronic chat with the intended victim, and had not
taken the additional step of traveling to a prearranged meeting
place, as Hofus did here. There was unlikely to be any confu-
sion about “substantial step” on the facts of this case. See
United States v. Meek, 366 F.3d 705, 720 (9th Cir. 2004)
(online sexual dialog and travel to meet the minor at a local
school sufficient substantial step); see also United States v.
Brand, 467 F.3d 179, 202-04 (2d Cir. 2006) (increasingly sex-
ually explicit conversations, arranging meeting and travel to
4564 UNITED STATES v. HOFUS
prearranged meeting place sufficient evidence of substantial
step).
[5] In sum, the instructions given by the district court were
adequate to guide the jury, and the court did not abuse its dis-
cretion by refusing Hofus’s proposed wording.
B. Unanimity
Hofus also argues that the district court erred by failing to
specifically instruct the jury that it must unanimously agree as
to what constituted the substantial step. See Richardson v.
United States, 526 U.S. 813, 817 (1999) (jury must unani-
mously find the government has proven each element).2 We
review this claim for plain error because Hofus did not specif-
ically request a unanimity instruction below and did not dis-
cuss this alleged problem with the court. Although Hofus
argues that he adequately preserved the issue because his pro-
posed instruction included the standard language from the
model instruction, we have held that Federal Rule of Criminal
Procedure 30 requires a defendant to state with adequate spec-
ificity the grounds for an objection to a jury instruction before
the jury retires, and that a “ ‘defendant’s mere proposal of an
alternate instruction does not satisfy Rule 30’s standard of
specificity.’ ” United States v. Peterson, 538 F.3d 1064, 1071
(9th Cir. 2008) (quoting United States v. Elias, 269 F.3d
1003, 1017-18 (9th Cir. 2001)).
Here, although Hofus’s proposed instruction happened to
contain the specific unanimity language, there was no discus-
sion with the court about the need for such language or the
2
Model Instruction 5.3 provides “Second, the defendant did something
that was a substantial step toward committing the crime, with all of you
agreeing as to what constituted the substantial step.” Model Crim. Jury
Instr. 9th Cir. 5.3 (2003). Although the court otherwise followed the
model instruction, it did not specifically include the unanimity language.
However, the court did give a general unanimity instruction.
UNITED STATES v. HOFUS 4565
failure of the court’s instruction to include it. Rather, the
instructional dispute the district court was asked to resolve
involved whether to further define “substantial step” as dis-
cussed in Section I.A. above, and how to define the underly-
ing Nevada sex crime. Thus, to succeed on his claim, Hofus
must establish (1) an error that is (2) plain or obvious, and (3)
affects his substantial rights; if these conditions are satisfied,
we may exercise our discretion to correct the error if it “seri-
ously affects the fairness, integrity or public reputation of
judicial proceedings.” Peterson, 538 F.3d at 1071-72 (internal
quotation marks and alteration omitted).
[6] Hofus cannot satisfy this standard, because the court’s
failure to give a specific unanimity instruction was not error.
Although the language is included in the model instruction,
we have never held that jurors must unanimously agree as to
which particular act by the defendant constitutes a substantial
step. Rather, the jury must unanimously agree that the sub-
stantial step requirement has been satisfied, as it was properly
instructed.
As the Supreme Court explained in Schad v. Arizona, an
indictment may allege that a defendant committed an offense
by one or more specified means, but “[w]e have never sug-
gested that in returning general verdicts in such cases the
jurors should be required to agree upon a single means of
commission, any more than the indictments were required to
specify one alone.” 501 U.S. 624, 632 (1991) (Souter, plural-
ity); see also id. at 649 (“It has long been the general rule that
when a single crime can be committed in various ways, jurors
need not agree upon the mode of commission.” ) (Scalia, J.,
concurring).
Hofus attempts to rely on Richardson v. United States for
the principle that “a jury in a federal criminal case cannot
convict unless it unanimously finds that the Government has
proved each element.” 526 U.S. 813, 817 (1999). But Rich-
ardson is not inconsistent with Schad, and, in fact, cites it for
4566 UNITED STATES v. HOFUS
the principle that “a federal jury need not always decide unan-
imously which of several possible sets of underlying brute
facts make up a particular element, say, which of several pos-
sible means the defendant used to commit an element of the
crime.” Id.
In Richardson, the Court concluded that, as a matter of stat-
utory interpretation, a particular statute treated each violation
in a “series of violations” as a separate element, and that the
jury must therefore be unanimous as to each element. Id. at
824. But the jury must only unanimously agree that each ele-
ment has been satisfied, as Richardson illustrates:
Where, for example, an element of robbery is force
or the threat of force, some jurors might conclude
that the defendant used a knife to create the threat;
others might conclude he used a gun. But that dis-
agreement — a disagreement about means — would
not matter as long as all 12 jurors unanimously con-
cluded that the Government had proved the neces-
sary related element, namely, that the defendant had
threatened force.
Id. at 817.
Our law is consistent with these principles. See United
States v. Lyons, 472 F.3d 1055, 1068-69 (9th Cir. 2007) (cit-
ing Schad and holding no need for jury to unanimously agree
whether defendant’s conduct was a “scheme to defraud” ver-
sus a “false promises” scheme because both types of schemes
violate the same underlying statutory offense); United States
v. Garcia, 400 F.3d 816, 819-20 (9th Cir. 2005) (relying on
Schad to hold jury did not need to unanimously agree whether
defendant was liable as principal or as aider and abetter,
because these were alternative means of committing single
crime); United States v. McCormick, 72 F.3d 1404, 1409 (9th
Cir. 1995) (affirming conviction for false statement on pass-
port application in absence of specific unanimity instruction,
UNITED STATES v. HOFUS 4567
and noting that “there is no general requirement that the jury
reach agreement on the preliminary factual issues which
underlie the verdict” (internal quotation marks omitted)).
Thus, here, even if different jurors found that different actions
constituted Hofus’s substantial step, the differences, like those
in the Richardson hypothetical, are differences only of means.3
[7] We therefore conclude that the district court did not err
by omitting a requirement of unanimity as to which specific
act or actions constituted the substantial step, because it is not
required under Schad. Thus, there was no error in the instruc-
tion, plain or otherwise.
II. Expert Testimony
Hofus also argues that the district court erred by limiting
the scope of his expert’s opinion and thereby prevented him
from presenting a defense. We review a district court’s deci-
sion to exclude expert testimony for an abuse of discretion.
United States v. Campos, 217 F.3d 707, 710 (9th Cir. 2000).
At trial, Hofus’s expert, Dr. McEllistrem, made a proffer of
his testimony, which included his opinion that (1) there was
no “grooming”4 activity in this case, as you would normally
3
This case is likewise distinguishable from situations in which we have
held specific unanimity instructions are required due to the potential of
jury confusion when the facts could permit multiple ways of satisfying not
only a single element of a charged crime, but could permit finding entirely
separate offenses directed at different victims, different times, etc. See,
e.g., United States v. Payseno, 782 F.2d 832, 837 (9th Cir. 1986) (specific
instruction required where evidence indicated three acts of extortion
directed at separate victims, occurring at different times and locations and
involving different methods of communicating threats); United States v.
Echeverry, 698 F.2d 375, 377 (9th Cir. 1983) as modified, 719 F.2d 974
(9th Cir. 1983) (specific instruction required because evidence of two sep-
arate conspiracies separated by several months).
4
Dr. McEllistrem explained that the term “grooming” in sex offender
cases refers to a “process where offenders engage in certain behaviors and
4568 UNITED STATES v. HOFUS
find with sex offenders, because the girls were already sexu-
ally experienced; (2) that Hofus valued the text communica-
tions as “fantasy alone”; and (3) that Hofus was not a
hebophile (having an abnormal sexual interest in youthful
women with some secondary sexual characteristics) or a
pedophile (having an abnormal sexual interest in prepubes-
cent children).
The court ruled that the doctor could testify about “groom-
ing,” his opinion that Hofus was not a hebophile, and gener-
ally about fantasy-based communications. However, the court
agreed with the government that pedophilia was irrelevant
because the case involved only post-pubescent girls, and that
Dr. McEllistrem could not express any opinion concerning
Hofus’s actual intent at the time specific acts occurred. When
prompted by the government to clarify how that ruling
applied to the “fantasy” testimony, the court ruled:
Well, he certainly cannot testify that in the final
stages of this text messaging that Mr. Hofus was
operating under a fantasy because the opinion that he
was operating under a fantasy suggests that there
was no intent to persuade, induce, or entice these
girls and, one, it’s frankly irrelevant to that, and two,
it’s confusing to the jury, so I would not allow that.
The defense then asked whether Dr. McEllistrem could tes-
tify that it was unlikely Hofus would act on the intentions
expressed in his texts. The court concluded that this was also
irrelevant, and that the expert could not testify whether Hofus
was likely to engage in the ultimate sexual activity with the
minor.
mental games to secure victims, make them comfortable with sexual activ-
ity, and then engage them with sex contact”; he also described it as a “very
slow, methodical process to take someone who is extremely naive and
innocent about sexual matters, gain trust, gain a comfort level around sex-
ual ideas, and then engage them sexually.”
UNITED STATES v. HOFUS 4569
[8] The district court properly excluded these aspects of
Dr. McEllistrem’s testimony as irrelevant under our precedent
in Goetzke. 494 F.3d at 1236. The underlying statute requires
an attempt to persuade, induce, entice, or coerce a minor to
engage in criminal sexual activity. 18 U.S.C. § 2422(b). How-
ever, we made clear in Goetzke that there is a difference in
attempting to persuade, induce, entice or coerce a minor to
engage in sexual activity and actually attempting to engage in
sexual activity with the minor. Id. As we explained in
Goetzke: “The latter is an attempt to achieve the physical act
of sex, for which physical proximity is integral. But the for-
mer is an attempt to achieve the mental act of assent, for
which physical proximity can be probative but is not
required.” Id. In Goetzke, we also relied on a number of cases
from other circuits which have similarly focused on the
intended effect of the communication rather than the defen-
dant’s intent to commit the underlying sexual activity:
Brand, 467 F.3d at 202 (holding that a conviction
under § 2422(b) requires a finding only of an intent
to entice, not an intent to perform the sexual act fol-
lowing the persuasion); United States v. Murrell, 368
F.3d 1283, 1286 (11th Cir. 2004) (stating that the
underlying conduct that § 2422(b) criminalizes is the
persuasion of the minor, rather than the sexual act
itself); United States v. Bailey, 228 F.3d 637, 639
(6th Cir. 2000) (observing that “Congress has made
a clear choice to criminalize persuasion and the
attempt to persuade, not the performance of the sex-
ual acts themselves.”).
Goetzke, 494 F.3d at 1236; see also United States v. Dwinells,
508 F.3d 63, 70 (1st Cir. 2007) (interpreting Goetzke as hold-
ing that government does not need to prove intent to commit
sexual act, but only intent to persuade, and agreeing with that
conclusion).
[9] Thus, like numerous other circuits, we have recognized
a distinction between the intent to persuade or attempt to per-
4570 UNITED STATES v. HOFUS
suade a minor to engage in a sex act and the intent to actually
commit the criminal sex act itself. As the Sixth Circuit elabo-
rated in Bailey:
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 per-
suasion and the attempt to persuade, not the perfor-
mance of the sexual acts themselves. Hence, a
conviction under the statute only requires a finding
that the defendant had an intent to persuade or to
attempt to persuade.
228 F.3d at 639 (emphasis added); see also United States v.
Thomas, 410 F.3d 1235, 1244 (10th Cir. 2004) (“Section
2422(b) requires only that the defendant intend to entice a
minor, not that the defendant intend to commit the underlying
sexual act.”).
[10] Thus, expert testimony as to whether Hofus was likely
to actually have sex with B.T. was irrelevant to whether
Hofus violated § 2422. Similarly, the proffered testimony that
Hofus valued the sexual texting with B.T. “in fantasy alone”
necessarily implies that Hofus lacked the intent to actually
have sex with B.T., but does not make it more likely or not
that he attempted to entice or persuade her to agree to an ille-
gal sex act. See Goetzke, 494 F.3d at 1236 (describing
§ 2422(b) violation as an attempt to achieve the mental act of
assent, as opposed to an attempt to engage in intercourse).
The district court also correctly noted that this portion of the
expert’s proposed testimony would likely confuse the jury as
to which intent it was required to find Hofus had possessed.
Hofus relies heavily on United States v. Gladish, 536 F.3d
646 (7th Cir. 2008), which reversed a conviction under
§ 2422(b) for insufficient evidence. The defendant there had
UNITED STATES v. HOFUS 4571
engaged in sexual chats with an agent posing as a minor girl
and discussed the possibility of meeting, but made no firm
arrangements; the court concluded that the defendant had not
taken a “substantial step” towards committing the crime. Id.
at 650. The Seventh Circuit then added that the district judge
should have permitted an expert witness to testify on the
defendant’s behalf: “The psychologist could not have been
permitted to testify that the defendant did not intend to have
sex with ‘Abagail,’ but he could have testified that it was
unlikely, given the defendant’s psychology, that he would act
on his intent.” Id. at 650-51.
Of course, we are bound to follow Goetzke rather than
Gladish. But even so, we do not find the Gladish analysis par-
ticularly persuasive. It is, of course, dicta, because the court
had already reversed the conviction. But more importantly,
the Seventh Circuit does not explain how the proffered testi-
mony would have been relevant to the issue before the jury.
Id. at 650-51. Moreover, Gladish’s conclusion appears some-
what inconsistent with an observation the court makes earlier
in the opinion, where the court notes that making arrange-
ments to meet can satisfy the substantial step element even
though “it is always possible that had the intended victim
been a real girl the defendant would have gotten cold feet at
the last minute and not completed the crime even though he
was in position to do so.” Id. at 648-49. If the defendant could
have been properly convicted of an attempted violation of
§ 2242 for traveling to meet the victim—even if he might
have backed out—then it is difficult to see how testimony that
he was likely to get cold feet would affect guilt of an
attempted violation under the statute.
Finally, even if the Seventh Circuit were correct that expert
testimony would have been relevant and helpful on the facts
of Gladish because only internet banter was involved, the sit-
uation here is factually distinct because Hofus took the addi-
tional steps of proposing a meeting, agreeing to a place, and
arriving at a place near that destination. Thus, the district
4572 UNITED STATES v. HOFUS
court was correct that the expert testimony would be more
confusing than helpful in Hofus’s case, which was much more
the typical sting operation. See id. at 648 (discussing typical
arrest).
[11] The proffered expert testimony in Hofus’s case
appears directed solely at the propensity to actually commit
the underlying sexual act, which was not before the jury. But
even if the “fantasy alone” testimony was offered to show an
absence of intent to “persuade, induce or entice” (as opposed
to an absence of intent to commit the underlying sexual act,
which is discussed above), then it goes to the ultimate issue
the jury must decide, and was properly excluded under Rule
704(b). Fed. R. Evid. 704(b) (“No expert witness testifying
with respect to the mental state or condition of a defendant in
a criminal case may state an opinion or inference as to
whether the defendant did or did not have the mental state or
condition constituting an element of the crime charged or of
a defense thereto.”). To say that Hofus meant the texting only
as fantasy is simply another way of saying he did not really
intend to entice or persuade the young girls, which is pre-
cisely the question for the jury. If the jury accepted Dr. McEl-
listrem’s testimony that Hofus engaged in texting B.T. “in
fantasy alone,” it would necessarily follow that Hofus did not
possess the requisite mens rea to violate § 2422. Such an
opinion would thus run afoul of Rule 704(b)’s prohibition on
such testimony.5
Hofus further claims that the limitations on expert testi-
mony violated his due process rights and his ability to present
a defense. However, Dr. McEllistrem was still allowed to tes-
5
Although Hofus complains that the expert’s testimony could not simul-
taneously be irrelevant and too relevant, the difference is in the purpose
for which it is offered. If offered to show Hofus’s propensity to commit
the underlying sexual act, it is irrelevant under Goetzke; but if offered on
the ultimate issue of intent to persuade or entice under § 2422, it is prohib-
ited by Rule 704 (as even Gladish recognized). See 536 F.3d at 651.
UNITED STATES v. HOFUS 4573
tify that Hofus lacked the characteristics of a hebophile, and
he also testified extensively about the large number of people
who engage in sexual texting or chat rooms for pure fantasy.
Hofus’s attorney was then able to argue to the jury in closing
that Hofus was one of those people, that it was just fantasy,
and that in Hofus’s mind there was no real intent, that it was
all divorced from reality.6
[12] We therefore conclude that the district court did not
abuse its discretion by limiting Dr. McEllistrem’s testimony,
and that Hofus was not denied the opportunity to present a
defense.
AFFIRMED.
NOONAN, Circuit Judge, dissenting:
As the opinion applying Goetzke accurately states, the
crime is the attempt to persuade a minor to engage in sexual
intercourse with the defendant. As the opinion also accurately
states, an expert is forbidden to testify to the existence of the
defendant’s intent to commit the crime that is charged. Fed.
R. Evid. 704(b). No rule, however, prohibits the expert from
testifying to the existence or absence of the defendant’s intent
to commit the uncharged crime of attempting to have sexual
intercourse with a minor. That testimony was what the
defense offered, and it was excluded.
6
Although Hofus’s opening brief mentions in passing that the district
court did not allow any testimony regarding pedophilia, it does not contain
any argument on this issue and we may consider it waived. See United
States v. Loya, 807 F.2d 1483, 1486-87 (9th Cir. 1987). In any event, the
district court properly excluded this testimony as irrelevant since Dr.
McEllistrem adequately explained the difference between pedophilia and
hebophilia, and this case only involved post-pubescent girls.
4574 UNITED STATES v. HOFUS
It was excluded because it was said to be irrelevant: it
wasn’t the crime charged. But it was highly relevant. If the
defendant did not intend to have intercourse with the minor,
he was unlikely to be attempting to persuade her to have inter-
course. What the expert would testify to is a circumstance, a
circumstance that makes it considerably less likely that the
crime that has been charged actually took place.
The expert testimony was also excluded because it would
confuse the jury. It would have required the jury to distin-
guish between the intent to attempt to persuade and the intent
to have sexual intercourse. The distinction may be difficult to
grasp but it is essential to the case. The prosecution succeeds
only by proving an intent to attempt. If the jury is able to
grasp the essence of the prosecution’s case, the jury can dis-
tinguish between the ultimate intent to be proved by the pros-
ecution and the intent the expert would testify to.
I do not believe that our per curiam in Goetzke and Judge
Posner’s opinion in Gladish need to be read in conflict. Judge
Posner quotes Goetzke at length and favorably. Both opinions
agree that Rule 704(b) blocks expert testimony on the intent
to commit the charged crime. Judge Posner goes on to point
out how the expert may testify to a circumstance that makes
it unlikely that the defendant did commit the charged crime.
In our case, the jury could have believed or not believed the
expert that Hofus only fantasized about actual sexual inter-
course. It was vital to the defense to have the expert’s testi-
mony before the jury. To deny the defense the right to present
it was to deny the right of the accused to present a defense.
The denial was prejudicial to the defense and violative of the
Sixth Amendment.