It is called proactive online policing: law enforcement officials posing as minors, or guardians of minors, on the Internet to catch child sexual predators. Many of these accused predators are prosecuted under federal law, 18 U.S.C. § 2422(b), although a significant number are prosecuted under various state child sex exploitation laws.
§ 2422(b) provides:
“Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this rule and imprisoned not less than 10 years or for life.”
This law imposes a severe mandatory minimum of 10 years. It punishes the crime and the attempt to commit the crime in the same manner. In other words, the mere attempt to draw a child into sexual activity is as serious as actually drawing the child into sexual activity.
California resident J. Howard learned this the hard way, although through highly questionable law enforcement tactics.
By his own admission, Howard had a sexual interest in young girls. He trolled the Internet in search of them, but there is no evidence that he ever acted on his fantasies.
In early 2012, Howard got involved in online small talk on a social networking sight with Iris Cabrielez, a Corpus Christi resident. Gradually; Howard turned the talk to his desire or fantasy of having sex with a 15-year-old girl. He asked Cabrielez if she could get him such a minor or if she knew anyone who could.
He said it was worth five thousand dollars to him. Cabrielez rebuffed the suggestion while taking “screen shot” of the conversation with her cell phone.
Cabrielez took the photo to Detective Alicia Escobar, a member of the Corpus Christi Police Department who was assigned to the department’s Internet Crimes Against Children Task Force. She established an online persona of a mother with two young daughters (ages 11 and 14) willing to offer them up for sex with strangers. Through an email address, Facebook and instant messaging, she became Melinda Posada who was introduced to Howard by Cabrielez as a friend who could provide children.
During a three-week period between February and March of 2012, Detective Escobar did everything in her power to entice Howard to make travel arrangements to go to Corpus Christi where her two fictitious daughters awaited to have sex with him. The fictitious mother and Howard exchanged graphic emails and telephone conversations about how wonderful it would be for Howard to have sex with the daughters.
Howard reportedly masturbated during the telephone exchanges, encouraged the mother to have sex with the daughters to get them prepared for him, and sent a photo of his penis to the mother who said it aroused the interest of the daughters to have sex with him.
Through all of these exchanges, Detective Escobar repeatedly encouraged Howard to book a flight to Corpus Christi. In response, he insisted that the fictitious mother send him photographs of the girls. She refused, finally giving Howard a “take it or leave it” offer. He responded that he would “leave it.”
No matter how disgusting Howard’s talk, the court noted that there was no single action by him in this case that clearly signified he would follow through on his sexual talk.
Three months later he was arrested in Northridge, California. He was indicted in Corpus Christi under § 2422(b), convicted after a trial by judge, and sentenced to the mandatory minimum of ten years.
At the close of the Government’s case, Howard’s attorney moved for a directed verdict of acquittal because the government had failed to prove Howard had taken a “substantial step” toward attempting to commit the crime and that his conduct amounted only to “mere preparation” to commit the crime. The judge denied the motion, finding that Howard’s sending the photo of his penis and requesting that the fictitious mother show it to her daughters constituted a “substantial step.”
Howard timely appealed to the Fifth Circuit Court of Appeals. On September 9, 2014, the appeals court was called upon to decide whether Howard’s conduct crossed the line between “preparation” and “attempt” to violate the provisions of § 2422(b). The appeals court began its analysis by rejecting the trial judge’s position that Howard’s conduct alone of sending the photo of his penis constituted a “substantial step” sufficient to establish attempt to commit the crime.
In response to Howard’s challenge that the Government had failed to show a “substantial step” taken by the defendant, the government informed the Fifth Circuit that:
• Howard first offered Cabrielez five thousand dollars if she could find children for sex;
• He sent the explicit photo of his penis and instructed Detective Escobar to show it to her fictitious daughters;
• He asked the fictitious mother if she had shown the photo to her daughters and wanted to know their reactions;
• He asked the fictitious mother to have sex with the daughters;
• He demanded pictures of the daughters; and
• He instructed the mother to obtain birth control for the girls.
The Fifth Circuit, as do all the other federal circuits, applies the Model Penal Code’s “substantial step” test to determine if a defendant’s conduct constitutes an “attempt” to commit a crime. As pointed out by the Fifth Circuit, this test has two elements: 1) specific intent to commit the underlying offense (or mens rea), and 2) conduct which constitutes a “substantial step” toward the commission of the crime. The appeals court in a 2009 decision, United States v. Barlow, held that the “’substantial step’ approach asks whether a person ‘purposely does or omits to do anything that, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to eliminate in his commission of the crime’.”
Put simply, a defendant’s conduct must directly correspond with his criminal intent. The “mere preparation” to commit a crime is not enough. In deciding whether Howard’s conduct constituted an attempt to violate § 2422(b), the Fifth Circuit noted that it was not necessary to establish actual sexual conduct with a minor, rather that the defendant sought to persuade a minor to engage in sexual conduct. The appeals court adopted a 2007 definition by the First Circuit in United States v. Dwinnells: “§ 2422(b) criminalizes an intentional attempt to achieve a mental state—a minor’s assent—regardless of the accused’s intentions vis-à-vis the actual consummation of sexual activities with the minor.”
Influenced by this narrow definition, the Fifth Circuit rejected the trial court’s finding that sending the explicit penis photo demonstrated a “substantial step,” but did conclude that a reasonable trier of fact could find “beyond a reasonable doubt that Howard’s conduct approached the line between despicable lawful conduct and criminal attempt—through his sexually explicit conversations, transmission of sexual photographs, and discussion of specific travel details—and crossed it when he instructed the undercover officer to perform sex acts on and procure birth control for the girls to get them ready for him…”
WE agree with the appeals court that lawful despicable behavior should not constitute a “substantial step” toward an attempt to commit a crime. We also agree that the government’s extreme conduct in this case made finding criminal attempt a close call and we join the Court in its hope that the facts in this case reach the outer bounds of a case the government would choose to prosecute under § 2242.