United States v. Gladish
536 F.3d 646, 2008 U.S. App. LEXIS 16228, 2008 WL 2927127 (2008)
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Rule of Law:
For a conviction of attempt, a defendant must not only intend the completed crime but also take a 'substantial step' toward its completion, which constitutes an overt act objectively demonstrating dangerousness and a likelihood of resulting in the crime's commission, distinguishing real threats from mere unacted-upon intent or 'hot air'.
Facts:
- Gladish, a 35-year-old man, visited an internet chat room called 'Indiana regional romance'.
- A government agent impersonated a 14-year-old girl named 'Abagail' in the chat room.
- Gladish solicited 'Abagail' to have sex with him and engaged in explicit sexual conversation.
- Gladish discussed the possibility of traveling from his home in southern Indiana to meet 'Abagail' in northern Indiana in a couple of weeks, but no specific arrangements were made for a meeting.
- Gladish sent 'Abagail' a video of himself masturbating.
Procedural Posture:
- A jury in federal district court convicted Gladish of violating 18 U.S.C. § 1470 (knowingly transferring obscene material to a person under 16) and 18 U.S.C. § 2422(b) (knowingly attempting to persuade a person under 18 to engage in sexual activity).
- The district court sentenced Gladish to 10 years for the § 1470 violation and 13 years for the § 2422(b) violation, with the sentences running concurrently, exceeding advisory guidelines for § 2422(b) to ensure punishment for the § 1470 violation.
- The district court judge prevented a psychologist hired by Gladish as an expert witness from testifying regarding Gladish's intent concerning the attempt charge.
- Gladish appealed his conviction for violating section 2422(b) to the United States Court of Appeals for the Seventh Circuit.
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Issue:
Does merely engaging in explicit sexual conversation in an internet chat room, without making arrangements for a physical meeting or taking other preparatory steps, constitute a 'substantial step' sufficient for a conviction of attempting to persuade, induce, entice, or coerce a minor into sexual activity under 18 U.S.C. § 2422(b)?
Opinions:
Majority - Posner, Circuit Judge
No, merely engaging in explicit sexual conversation in an internet chat room, without taking concrete steps to arrange a physical meeting, does not constitute a 'substantial step' for an attempt conviction under 18 U.S.C. § 2422(b). The court reasoned that to be guilty of an attempt, a defendant must intend the completed crime and take a 'substantial step' that demonstrates dangerousness—an 'overt act adapted to, approximating, and which in the ordinary and likely course of things will result in, the commission of the particular crime.' In typical internet sting operations involving soliciting minors, a substantial step usually involves traveling to meet the pretend victim or making specific arrangements for a meeting, which Gladish did not do beyond discussing possibilities. Gladish's explicit talk and sending a masturbation video were considered consistent with an intent to obtain vicarious sexual satisfaction, a 'hot air' scenario, rather than a genuine intent to physically meet and have sex with a minor. The court found that treating mere speech as a substantial step would effectively abolish the requirement, blurring the line between dangerous individuals taking action and those merely expressing intent without follow-through. The court also noted that the district judge erred in preventing a defense psychologist from testifying about Gladish’s mental condition, as such testimony could support the 'hot air' hypothesis by explaining why he might not act on his expressed intent, which is permissible under Federal Rule of Evidence 704(b).
Analysis:
This case significantly clarifies the high threshold for establishing a 'substantial step' in federal attempt crimes, particularly in the context of internet sting operations targeting sexual solicitation of minors. It reinforces the critical distinction between expressing intent or engaging in explicit talk ('hot air') and taking concrete, objective actions that unmistakably move toward the completion of the crime. The ruling prevents the criminalization of mere speech as an attempt, requiring governmental prosecutions to demonstrate more significant preparatory conduct by the defendant. This may lead to stricter requirements for law enforcement in sting operations, ensuring that defendants have taken verifiable steps beyond online communication before an attempt conviction can be secured.
