U.S. v. Howard – Fifth District Draws Line Between Criminal Acts and “Despicable Lawful Conduct”

Tags: Sex Crimes

Our Birminghan sex crime defense lawyers know in many sexual offense cases, there is a fine line between that which offends our moral and ethical sensibilities and that which actually crosses over into criminal conduct.

Recently, the Fifth District Court of Appeal was asked to make a determination whether a trial court made the right distinction in U.S. v. Howard . The question before the court concerned the criminal law of attempt, and whether defendant’s conduct crossed a line from “preparation” to “attempt” in knowingly persuading, inducing, enticing or coercing a minor to engage in illegal sexual conduct, per U.S.C. 2422(b). Cases brought under this statute are almost always the result of a law enforcement “sting,” where the actual sex crime is not carried out, and questions regarding criminal intent loom large.

Here, a government agent posed as a mother who offered her two minor daughters to the defendant for sex. It was part of a three-week sting operation organized by detectives from a municipal police department in Texas.

At the time, defendant was unemployed, bedridden due to an injury and residing with his girlfriend in another state.

He reportedly began corresponding with a woman in what began as a flirtation on social media. Defendant allegedly escalated the conversation by requesting, in slang terms, if she could procure a 15-year-old for sex with him.

The woman declined, telling him she’d been raped at 13 and would never do that. He offered her $5,000 for each girl. She contacted police.

Police established a fictitious person with a complete online profile who was reportedly the woman’s friend who had two young daughters. In phone and online conversations, he expressed interest in having sex with her daughters, age 11 and 14, and said he would be willing to travel to Texas to do so. He sent photographs of his genitals, and detailed the sex acts he intended to perform on the girls and their mother. He asked her to “get them ready” for him by performing various sex acts on them. He also asked the mother to give the girls birth control. They discussed specific travel plans, including flight itineraries and hotel reservations.

However, defendant abruptly cut off communication when the detective refused to allow him to speak to the girls on the phone.

Three months later, defendant was arrested.

At a bench trial, his defense attorney argued prosecutors failed to prove defendant took a “substantial step” in perpetuating the crime – a key element in a charge of attempt – because his actions merely amounted to preparation. The district court ruled defendant’s sending photographs of his genitals and asking that it be shown to specific minors was a “substantial step.”

Defendant was convicted and sentenced to five years in prison, the mandatory minimum.

On appeal, defendant argued he did not take a substantial step toward the enticement of a minor to engage in illegal sexual activity, and further that the “attempt” provision of the federal charge was overbroad and unconstitutionally vague.

In order to weigh whether a “substantial step” was taken, the court must determine, per the standard set in U.S. v. Hernandez-Galvan, whether a person purposely does or omits to doing something under the circumstances, as he or she believes them to be, that constitutes a significant step in the course of conduct planned to initiate the commission of a crime. It’s not enough if an act is “merely preparatory.” The evidence needs to strongly corroborate the firmness of defendant’s criminal intent.

In U.S. v. Brousard, the court held it’s not necessary that the sexual act occur, but rather the defendant tried to persuade the minor to engage in the conduct. Defendant argued his acts – including discussions of hotel and flight reservations – were best described as preparation.

The appellate court found sending sexually explicit photographs of himself did not constitute a substantial first step, as indicated by the district court. Other circuits have held explicit sex talk regarding minors, morally reprehensible though it might be, is merely “despicable lawful conduct,” and not enough to support conviction under U.S.C. 2422(b). However, making travel plans for this purpose – even if not solidified – is sufficient. Therefore, the conviction was upheld.

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