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The D.C. Circuit Makes It Harder to Prosecute Someone For Enticing A Minor

Editor’s Note – We’ve never had a guest post before, and normally I give a blanket no to a request for one. But, Assistant Federal Public Defender extraordinaire Jon Jeffress wrote a great piece about the D.C. Circuit’s recent decision in United States v. Hite that I’m very pleased to publish here.

If you’re looking at this as a precedent for other guest posts, please know that if you are an AFPD or credible attorney working in the federal system on criminal cases, I’d be happy to look at anything. Otherwise, no.

Finally, I should say that the opinions here are solely Jon’s, not those of his office or anyone else. Except where he’s quoting the D.C. Circuit – those are the opinions of the Circuit.

D.C. CIRCUIT ISSUES IMPORTANT DECISION REGARDING SCOPE OF ONLINE ENTICEMENT STATUTE, 18 U.S.C. § 2422(b)

The federal statute criminalizing the online enticement of minors, 18 U.S.C. § 2422(b), contains a severe penalty. Individuals who violate § 2422(b) — even first time offenders — are subject to a ten-year mandatory minimum and a life maximum. Congress legislated this severe penalty to deal with a particular kind of offender: the online predator who uses the Internet to reach into a home and befriend a child for sexual purposes.

And yet, the above scenario represents only a small fraction of prosecutions the government brings under § 2422(b). What one sees equally often is undercover law enforcement agents aggressively pursuing defendants who are using the Internet to find other consenting adults for sexual encounters. The agents will contact these individuals over the Internet and begin flirting, failing to even reveal the purported age of the minor they are portraying until late in the communications. In addition, there are numerous cases involving defendants who are talking about sex with minors with someone they believe to be another consenting adult, with no clear intention of ever doing anything in the real world. Neither of the foregoing scenarios is what Congress envisioned when it enacted § 2422(b) and included its severe penalty.

For anyone defending enticement cases in federal court, the D.C. Circuit’s opinion in United States v. Hite, DC, — F.3d —, 2014 WL 5343626 (D.C. Cir. Oct. 21, 2014) , should be a welcome development. In Hite, the court brought badly needed clarity to the proper use of 18 U.S.C. § 2422(b). And more importantly, the court took an important step towards eliminating the large number of dubious yet life-ruining prosecutions the government brings under this statute.

In Hite, Dr. Hite, an anaesthesiologist, was convicted of enticing a minor based on communications he had with an undercover police officer who was pretending to be another adult with sexual access to two minors. As one sees frequently in such cases, the undercover office aggressively pursued Dr. Hite, encouraging him to travel from Richmond, Virginia (where Dr. Hite lived) to Washington, D.C., where the undercover purported to live, for a sexual encounter with the undercover and the fictitious minors. Although the two adults engaged in numerous appalling communications, Dr. Hite at no time accepted the undercover officer’s invitation to travel to D.C. to meet with him. And yet, based exclusively on Dr. Hite’s communications with a person he believed to be another adult, Dr. Hite was convicted under § 2422(b) and sentenced to 22 years in prison. Again, the court imposed that lengthy sentence notwithstanding the fact that Dr. Hite: (1) never communicated with someone he believed to be a minor; and (2) never went anywhere with the intention of engaging in an illegal sexual encounter.

In reversing Dr. Hite’s conviction, the D.C. Circuit clarified the scope of § 2422(b) in several important ways. As an initial matter, the court rejected Dr. Hite’s argument that a defendant must communicate directly with a minor (or a person he believes to be a minor) in order to violate the statute. Dr. Hite (here) and FPD (as amicus, here) had argued that the statute only applied to those who communicate directly with minors. While the D.C. Circuit held against Dr. Hite on this point, this argument is strongly supported by the plain text of the statute. It therefore remains an argument that practitioners should preserve in the district court and on appeal, as the Supreme Court may ultimately adopt this position when it finally addresses the scope of § 2422(b).

The good stuff starts with the paragraph beginning “By the same token, we reject the Government’s argument that § 2422(b) does not require the defendant to attempt to transform or overcome the minor’s will.” Id. at *6. Here, the court definitively rejected the government’s theory that a defendant violates the statute merely by “arranging” with another adult to have underage sex (which the jury instructions in Hite also described as “persuad[ing] another adult to cause a minor to engage in sexual activity”). In the critical paragraph rejecting the district court’s jury instruction, the court stated:

In the case at bar, the jury instructions defining the requisite intent did not fully comport with the interpretation of the statute we announce today. Over defense objection, the District Court instructed the jury that “[d]irect communications with a child” are not necessary for a jury to find a violation of § 2422(b), and that the “government must only prove that the defendant believes that he was communicating with someone who could arrange for the child to engage in unlawful sexual activity.” The instructions further provided that “the government must prove only that the defendant intended to persuade, or induce, or entice, or coerce a minor to engage in illegal sexual activity, or intended to persuade an adult to cause a minor to engage in unlawful sexual activity.” As discussed supra, the preeminent characteristic of the conduct prohibited under § 2422(b) is transforming or overcoming the minor’s will, whether through “inducement,” “persuasion,” “enticement,” or “coercion.” Although the word “cause” is contained within some definitions of “induce,” cause encompasses more conduct; simply “to cause” sexual activity with a minor does not necessarily require any effort to transform or overcome the will of the minor. Similarly, rather than focusing on transforming or overcoming the will of another person, “arrange” means to “put (things) in a neat, attractive or required order” or to “organize or make plans for (a future event).” Thus although much of the instruction was correct, the additional language that the “government must only prove that the defendant believe that he was communicating with someone who could arrange for the child to engage in unlawful sexual activity” was erroneous.

Id. at *9 (citations omitted) (emphasis in original).

Notably, the above holding creates a clear circuit split between the D.C. Circuit and the Eleventh (e.g., United States v. Murrell, 368 F.3d 1283 (11th Cir. 2004)), and probably more (see, e.g., United States v. Douglas, 626 F.3d 161, 165 (2d Cir. 2010) (noting that the required “assent might be obtained, for example, by persuading a minor’s adult guardian to lead a child to participate in sexual activity”)). In addition, the Hite court’s plain meaning interpretation of the statute’s verbs “persuade,” “induce,” “entice,” and “coerce” will help defendants not only in cases involving an “adult intermediary,” such as Hite itself, but also in those cases where the defendant is communicating directly with someone he believes to be a minor. In either situation, the jury must find that the defendant is “seek[ing] to transform or overcome the will of a minor,” and not merely agreeing or even arranging to have sex.

The Hite court’s rejection of the government’s “arranging” theory of § 2422(b) – particularly if accepted in other Circuits, or even better by the Supreme Court – will be very helpful to those litigating enticement cases with relatively mild facts. The reality of these cases is that while “arranging” for underage sex sounds bad enough in the abstract, the ways in which U.S. Attorney’s Offices around the country are utilizing this statute demonstrate the injustice of applying § 2422(b) and its 10-year mandatory minimum to “arrange” situations. This statute should not apply where undercover law enforcement agents have aggressively pursued a defendant who, left to his own devices, would not have sought out a minor for sex. When measured against the human cost to the defendant and his loved ones, it is exceedingly difficult to see how anyone is benefitting from such prosecutions, except perhaps for the Internet Crimes Against Children (ICAC) task forces, whose budgets are dependent on the number of cases the task forces generate. The Hite opinion should help bid good riddance to these dubious cases, which are not what Congress had in mind when it enacted § 2422(b) and included its 10-year mandatory minimum.

The Appellant’s brief is here and the Federal Public Defender’s amicus brief in support of the appellant is here.