985 F.3d 298
3rd Cir.2021Background
- Davis responded to a Craigslist "w4m" ad posted by an undercover officer posing as an 18-year-old; the officer later identified the persona as a 14-year-old girl, "Marisa."
- Over eight days of texts, Davis (who at times misrepresented his age) exchanged grooming-type messages, offered gifts, discussed meeting times/unsupervised windows, and agreed to meet at a McDonald’s and spend the day at a water park; he assured she would be protected and said he would bring condoms.
- On the morning of the meeting Davis traveled from New York to Pennsylvania, was arrested in the agreed meeting place, and had condoms on his person; he made post-arrest statements admitting knowledge of the minor’s age (which he later contested).
- Indicted on attempted enticement of a minor (18 U.S.C. § 2422(b)) and interstate travel with intent to engage in illicit sexual conduct (18 U.S.C. § 2423(b)); jury convicted on both counts.
- District Court applied a two-level Guidelines enhancement for misrepresenting age/sexual orientation; Davis was sentenced to 127 months, five years’ supervised release, and required to register as a sex offender.
- On appeal Davis challenged sufficiency of the evidence, prosecutorial statements about the law (substantial-step), entrapment as a matter of law, and the sentencing enhancement; the Third Circuit affirmed.
Issues
| Issue | Plaintiff's Argument (Gov't) | Defendant's Argument (Davis) | Held |
|---|---|---|---|
| Sufficiency — attempted enticement (§ 2422(b)) | Texts, post-arrest confession, travel and condoms establish intent and substantial steps | Believed "Marisa" was a role‑playing adult; evidence fails to unequivocally prove he thought she was a minor | Affirmed: jury could infer intent from texts, confession, travel, and condoms; standard does not require "unequivocal" corroboration when independent evidence of intent exists |
| Sufficiency — interstate travel (§ 2423(b)) | Travel to meet at agreed place corroborates intent to engage in illicit sexual conduct with a minor | Traveled to meet an adult he believed was role‑playing; no intent to meet a minor | Affirmed: travel plus surrounding evidence supports finding of intent to meet a minor |
| Prosecutor’s closing — substantial‑step definition (travel, condoms) | Travel to meeting place and possession of condoms related to the enticement plan and thus are substantial steps | As a matter of law substantial steps must be necessary to consummate the crime or occur before enticement; post‑enticement acts cannot qualify | Affirmed: substantial step need only relate to the criminalized conduct and corroborate intent; travel/condoms tied to communications may be substantial steps |
| Entrapment as matter of law | Government presented predisposition evidence (post‑arrest statements, ready response to inducement) | Davis lacked predisposition; sting persistence and his limited explicitness show inducement | Affirmed: reasonable jury could find predisposition; entrapment rejected |
| Sentencing enhancement (U.S.S.G. §2G1.3(b)(2)) — misrepresenting age/orientation | Misrepresentations of age and orientation were used to persuade; enhancement applies (note (b)(2)(A)) | Enhancement improper for sting contexts and because he corrected age/was ending contact when mentioning orientation | Affirmed: no plain error; enhancement fits misrepresentation of identity (age); even if orientation issue borderline, age misrepresentation alone supports enhancement |
Key Cases Cited
- United States v. Cruz-Jiminez, 977 F.2d 95 (3d Cir. 1992) (discusses when a substantial step must unequivocally evidence intent and when independent proof of intent suffices)
- United States v. Tykarsky, 446 F.3d 458 (3d Cir. 2006) (instant messages and travel can corroborate intent to entice a minor)
- United States v. Brand, 467 F.3d 179 (2d Cir. 2006) (defendant’s appearance at a prearranged meeting tied to communications is a substantial step)
- United States v. Young, 613 F.3d 735 (8th Cir. 2010) (travel and related acts in accordance with a plan established over communications can be substantial steps)
- United States v. Gladish, 536 F.3d 646 (7th Cir. 2008) (travel demonstrates communications were not mere hot air)
- United States v. Bailey, 228 F.3d 637 (6th Cir. 2000) (discusses necessity of substantial‑step analysis in attempt law)
- United States v. Roman, 795 F.3d 511 (6th Cir. 2015) (bringing items to a meetup affirmed as a substantial step when tied to the plan)