Tuesday, July 28, 2009

18 U.S.C. § 2242(b) May be Violated Without Direct Communication with Child or Individual Defendant Believes is a Child

In United States v. Nestor, No. 08-2535 (July 23, 2009), the defendant challenged his conviction for attempted enticement under 18 U.S.C. § 2242(b). The defendant communicated with undercover law enforcement officers via email and telephone to arrange a sexual encounter with whom he thought were a father and his minor stepson. The defendant communicated only with adult males posing as the stepfather. The grand jury indicted the defendant on one count of attempted enticement of a minor, in violation of 18 U.S.C. § 2422(b), as well as knowing possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). The defendant pled guilty to the child pornography charge, but proceeded to trial on the attempted enticement charge. He argued that he could not violate § 2422(b) if he did not have direct contact with a minor or someone he believed was a minor. However, he was ultimately found guilty and sentenced to 120 months. On appeal, the defendant again argued that he could not violated § 2422(b) if he used an adult intermediary to facilitate the attempted enticement. Relying upon the legislative history of the statute, policy considerations and common sense, the Third Circuit upheld the conviction. The court reasoned that, as the defendant was charged with an attempted violation of § 2422(b), his crime was complete when he demonstrated his intent to commit the crime and he took a substantial step toward its commission using a means of interstate commerce. The court concluded that the defendant demonstrated his intent to commit the crime via his emails and telephone conversations, and he took a substantial step toward its commission using a means of interstate commerce by arranging the rendevous and discussing how to avoid police protection via email and telephone.

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