Definition of “Sexual Contact” under U.S.S.G. § 2G1.3(b)(4)(A) Does Not Require Contact with Minor Victim

In United States v. Pawlowski, No. 10–4105 (3d Cir., June 19, 2012), the defendant challenged his conviction for attempted enticement of a minor under 18 U.S.C. § 2422(b). The defendant initiated an online communication on the social networking site "My Yearbook" with an individual portrayed as a 15 year old girl named "Ashley". Ashley was in fact a detective from the Allegheny County District Attorney's Office. During their online correspondence, the defendant inquired several times about Ashley's age. Initially, Ashley listed her age as 98, then later responded that she was 15 years old. Ashley also provided pictures of herself, which were in fact pictures of a female police officer during her teenage years. The court ruled that this evidence was sufficient to prove that the defendant believed he was communicating with a minor, as required under § 2422(b).

The Third Circuit also found that the sentencing court properly applied the two-level enhancement under U.S.S.G. § 2G1.3(b)(4)(A) for “sexual contact”. The court reviewed the definitions for the terms “sexual contact” and “sexual act,” as used under the statute and the guideline, to conclude that “sexual contact” does not require contact with the minor victim. Therefore, the defendant’s act of masturbation in front of his webcam during an online conversation with Ashley constituted “sexual contact” under § 2G1.3(b)(4)(A).

The court also rejected the defendant’s challenge to the government’s opening statement, in which the prosecutor informed the jury that defense counsel would “certainly present evidence and explain things.” The defendant argued that this statement improperly referenced his constitutionally-protected decision not to testify. The court, however, ruled that this “brief and isolated” remark did not constitute plain error because any harm inflicted by the remark was diffused by defense counsel’s response during his opening statement, as well as the trial court’s repeated clarification that the government bore the burden of proof.