United States v. Faust
2015 U.S. App. LEXIS 13614
| 10th Cir. | 2015Background
- Faust was convicted of attempted online enticement of a minor under 18 U.S.C. § 2422(b).
- FBI/ICAC undercover posted an ad; Faust replied as David Faust (41) to lure a mother and purported daughter for sex.
- Over a week, Faust exchanged 45 emails with an undercover agent posing as Joelle, a 37-year-old with a 12-year-old daughter, negotiating sexual acts for $200.
- Faust planned a meeting at a Cheyenne motel; surveillance followed him to the Round Up Motel where he was arrested.
- Condoms and a phone were found; Faust admitted conversations with Joelle to arrange a sexual encounter but claimed he would not proceed.
- At trial, the court refused Faust’s proposed specific-intent instruction; the jury found Faust guilty and he was sentenced to 120 months’ imprisonment and ten years’ supervised release.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was sufficient evidence of intent | Faust argued no substantial step toward illegal activity. | Faust argued absence of intent to engage in illegal activity. | Sufficient evidence supported intent under § 2422(b). |
| Whether the district court abused its discretion by not giving a specific-intent instruction | Faust claimed right to present defense via specific-intent instruction. | Court should not give vague, problematic specific-intent instruction. | Court did not abuse discretion; instructions adequately defined mens rea without the proposed instruction. |
Key Cases Cited
- United States v. Thomas, 410 F.3d 1235 (10th Cir.2005) (elements of § 2422(b) including attempt require substantial step)
- United States v. Bailey, 228 F.3d 637 (6th Cir.2000) (intent to persuade, not necessarily to perform the act itself)
- Berg v. United States, 640 F.3d 239 (7th Cir.2011) (focus on intended effect on the minor, not the defendant’s intent to engage in sexual activity)
- Winchell v. United States, 129 F.3d 1093 (10th Cir.1997) (specific-intent instruction disfavored; prefer offense-specific reasonable instructions)
- Liparota v. United States, 471 U.S. 419 (1985) (caution against vague ‘specific intent’ instructions; adequacy of mental-state instructions can suffice)
- Arambasich, 597 F.2d 609 (7th Cir.1979) (critique of generic specific-intent wording; supports offense-specific framing)