United States v. Lee
2010 WL 1508192, 603 F.3d 904 (2010)
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Rule of Law:
A defendant can be convicted for attempting to entice a minor to engage in illicit sexual activity even if the minor is fictitious and all communications are through an adult intermediary, as long as the defendant's actions constitute a substantial step toward commission of the crime.
Facts:
- Lee communicated online with a postal inspector who was posing as 'Candi Kane', a mother of two girls ages 7 and 12 (later 8 and 13).
- Over several months, Lee discussed sexual activities with the minors, including detailed plans about how he would 'bring them into womanhood.'
- Lee sent explicit images of himself to Candi and requested she show them to her daughters, and also requested explicit photos of the minors in specific poses.
- Lee and Candi discussed the possibility of Lee traveling to California to meet the girls, though no concrete travel plans were made.
- Lee masturbated on webcam for Candi and asked her to share it with her daughters.
- Lee was arrested when he received a package he believed contained child pornography that Candi had created of her daughters at his request.
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Issue:
Did Lee's actions constitute a substantial step towards committing the crime of attempting to entice a minor to engage in illicit sexual activity, sufficient to uphold his convictions under 18 U.S.C. § 2422(b) and related statutes?
Opinions:
Majority - Pryor (J.)
Yes. Lee's actions constituted a substantial step towards the commission of the crime of attempting to entice a minor to engage in illicit sexual activity. The statute does not require direct communication with a minor or that the minor actually exist. Section 2422(b) criminalizes an attempt to achieve a mental state - a minor's assent to sexual activity - not the sexual activity itself. Lee's objective acts, taken as a whole, strongly corroborate his criminal intent. Over several months, Lee repeatedly discussed when and how he wanted to engage in sexual acts with the fictitious minors, sent graphic photographs to be shown to the girls, requested explicit photographs of them, and took steps to groom them by promising gifts. The fact that Lee never made final travel plans is irrelevant because physical proximity is not required for an attempt to achieve the mental act of assent. Lee's communications went beyond mere preparation because he requested assistance from the one person who had influence and control over the daughters. His constant concern about whether Candi was participating in a law enforcement sting further demonstrates his awareness of the criminal nature of his conduct.
Concurrence_in_part_dissent_in_part - Martin (J.)
I concur with affirming Lee's convictions for receiving child pornography and attempting to produce child pornography. However, I dissent regarding the conviction for attempting to entice a child because the evidence fails on the substantial step requirement. For an attempt conviction, the defendant must not only intend to commit the crime but also take a substantial step toward committing it. Lee never took any step to travel to California - he never bought a ticket, set a date for a visit, or left Georgia. His plans to meet were never more than general talk about what could happen in the future. While Lee's conversations were repugnant, he never took any step to extend his relationship with Candi or her daughters beyond the boundaries of his property in Georgia. The majority's opinion does not clearly demarcate despicable but lawful talk from a criminal attempt punishable by up to thirty years in prison. Previous cases upholding convictions under § 2422(b) involved defendants who took more substantial steps toward consummating the crime.
Analysis:
This case significantly clarifies the scope of 18 U.S.C. § 2422(b), establishing that the crime of attempted enticement focuses on the defendant's efforts to secure a minor's assent to sexual activity, not on the sexual activity itself. The court emphasizes that communication through an adult intermediary is sufficient and that the statute applies even when the minor is fictitious. The majority and dissenting opinions highlight an important tension in attempt law: determining when preparatory actions cross the line to become a substantial step toward commission of a crime. The majority takes a broader view that encompasses extensive grooming behavior and explicit communications, while the dissent argues for a more restrictive approach requiring concrete actions toward physical meeting. This decision has important implications for prosecuting online predators who may never meet their intended victims in person.
