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Media Alerts - United States v. Howard - Fifth Circuit
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September 10, 2014
  United States v. Howard - Fifth Circuit
Headline: Fifth Circuit Provides Guidance on Meaning of Federal Statute Prohibiting Attempts to Coerce Children into Sex.

Area of Law: Criminal law of attempt; 18 U.S.C. § 2422(b).

Issue Presented: Whether a person can commit the offense of attempting to induce a child to engage in sexual activity under 18 U.S.C. § 2422(b) if the person does not make travel plans to see the child; whether 18 U.S.C. § 2422(b) is unconstitutionally vague and overbroad.

Brief Summary: As part of a sting operation, a government agent impersonated a mother offering up her two minor daughters for sex. Defendant-Appellant Jeffrey Howard sent the agent sexually explicit photographs and asked that she show the photographs to the girls. He also suggested that the agent procure birth control for and perform sex acts on her daughters to get them ready for him. The government agent tried to get Howard to commit to book a flight and make other travel plans, but Howard ultimately refused. Three months later the police arrested Howard. Howard was convicted by bench trial in the U.S. District Court for the Southern District of Texas of attempt to knowingly persuade, induce, entice, or coerce a minor to engage in illegal sexual activity in violation of 18 U.S.C. § 2422(b). Howard was sentenced to 120-months imprisonment, the mandatory minimum. Howard appealed to the U.S. Court of Appeals for the Fifth Circuit challenging the sufficiency of the evidence and the constitutionality of the statute. The Fifth Circuit affirmed Howard's conviction and sentence and held 18 U.S.C. § 2422(b) constitutional.

Extended Summary: As part of a sting operation, a government agent impersonated a mother in Corpus Christi, Texas, offering up her two minor daughters for sex. Defendant-Appellant Howard, residing in California, unemployed and bed ridden from a back injury, sent the agent sexually explicit photographs and asked that she show the photographs to the girls. He also suggested that the agent procure birth control for and perform sex acts on her daughters to get them ready for him. But Howard did not make travel arrangements to Corpus Christi, Texas, where the fictional mother and her two daughters lived. Further, the government agent tried to get Howard to commit to book a flight and make other travel plans, instructing Howard to "take it or leave it," and Howard responded, "okay, I'll leave it." Three months later the police arrested Howard in California. Howard was convicted by bench trial in the U.S. District Court for the Southern District of Texas of attempt to knowingly persuade, induce, entice, or coerce a minor to engage in illegal sexual activity in violation of 18 U.S.C. § 2422(b). At the close of the government's case in chief, Howard moved for a directed verdict. Howard argued the government did not prove that he took a "substantial step" because his conduct amounted to mere preparation. The district court orally rejected Howard's motion for a directed verdict. Howard was sentenced to 120-months imprisonment, the mandatory minimum. Howard appealed to the U.S. Court of Appeals for the Fifth Circuit.

Howard sought reversal of his criminal conviction on two grounds. First, Howard argued there was insufficient evidence to support his conviction for violation of § 2422(b) because he did not take a "substantial step" toward enticing a minor to have illegal sex. Second, Howard contended the "attempt" provision of § 2422(b) is unconstitutionally vague and overbroad because it criminalizes free speech.

Sufficiency of the Evidence: The "substantial step" approach asks whether a person purposefully does or omits to do anything that is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. Acts that are merely preparatory are not enough. To determine whether Howard's conduct crossed the line between preparation and attempt, one must define the conduct that § 2422(b) criminalizes. Section 2422(b) does not require that the sexual contact occur but only that the defendant sought to persuade the minor to engage in that contact; it 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. Howard argued that his actions were mere preparation because he made no firm travel plans. The Fifth Circuit had already held that travel to a meeting place is sufficient to establish attempt, but it had never held that travel or plans to travel are necessary. The Fifth Circuit and other circuits' case law supports the rule that grooming behavior plus other acts strongly corroborative of intent to entice illegal sex - such as detailed discussions to arrange a meeting with the minor victim - can suffice to establish a substantial step under § 2422(b). The Fifth Circuit disagreed with the district court's conclusion that Howard took a substantial step toward enticing a minor to engage in illegal sex simply by sending a sexually explicit photograph of himself and asking that it be shown to the girls. The Fifth Circuit also rejected Howard's argument that travel or a definite plan to travel is required to sustain a conviction under § 2422(b). However, the Fifth Circuit held that that a reasonable trier of fact could conclude 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 police officer to perform sex acts on and procure birth control for the girls to get them ready for him. The finding of criminal attempt in this case was a close call, and the Fifth Circuit expressed its hope that this case represents the outer bounds of cases the government chooses to prosecute under § 2422(b). The Fifth Circuit affirmed Howard's conviction and sentence.

Constitutional Challenge: Howard challenged the constitutionality of § 2422(b) on two grounds. He asserted (1) that the term "attempt" is unconstitutionally vague and (2) that § 2422(b) is unconstitutionally overbroad because it criminalizes protected speech in violation of the First Amendment. The government argued § 2422(b) is not unconstitutionally vague or overbroad, noting that the Second, Third, Sixth, Ninth, Tenth, and Eleventh Circuits have analyzed the statute and rejected similar constitutional challenges. The Fifth Circuit agreed with the government and held § 2422(b) constitutional.

For the full opinion, please see:
http://www.ca5.uscourts.gov/op...ub/13/13-40767-CR0.pdf

Panel: Circuit Judges Higginbotham, Jones, and Prado

Argument Date: 7/9/2014

Date of Issued Opinion: 9/9/2014

Docket Number: No. 13-40767

Decided: Affirmed

Case Alert Author: Kirsty Davis

Counsel: Eileen K. Wilson, AUSA, for Plaintiff-Appellee United States; Simon Brian Purnell, for Defendant-Appellant Howard.

Author of Opinion: Judge Prado

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 09/10/2014 09:28 PM     5th Circuit  

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