98 F.4th 1235
10th Cir.2024Background
- John William Thomas Flechs was convicted by a jury of attempted enticement of a minor (18 U.S.C. § 2422(b)) after engaging in sexually explicit online conversations with what he believed was a 14-year-old boy (actually an undercover officer), and then meeting in person to deliver sodas at the minor’s request.
- Discussions included explicit sexual topics over several days, but Flechs, when directly asked by the minor to meet for sex, responded that it was illegal and did not make or accept a direct sexual proposal.
- Flechs was arrested after delivering the sodas at the arranged meeting point and was sentenced to 120 months in prison and five years of supervised release; he appealed his conviction.
- On appeal, he argued the evidence was insufficient to show both specific intent to entice and a substantial step toward enticement, and challenged the jury instruction on "grooming."
- The Tenth Circuit affirmed the conviction, with a dissent arguing that, without a sexual proposal or acceptance thereof, no substantial step had been taken under § 2422(b).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of Evidence—Intent | Flechs lacked intent as he did not propose or accept sexual activity | The messages and conduct showed intent to entice, regardless of no proposal | Evidence was sufficient for intent |
| Sufficiency of Evidence—Substantial Step | No substantial step without a sexual proposal; actions were preparatory | Meeting after grooming messages plus in-person meeting was a substantial step | Evidence was sufficient for substantial step |
| Jury Instruction on "Grooming"—Rule 605 | Instruction constituted judicial testimony violating Rule 605 | Definition of "grooming" is a permissible legal instruction | No Rule 605 violation; instruction proper |
| Jury Instruction—Presumption/Legal Accuracy | Instruction was an unconstitutional presumption and misstated law | Instruction matched case law and did not create a presumption | No plain error; no improper presumption |
Key Cases Cited
- United States v. Sells, 477 F.3d 1226 (10th Cir. 2007) (articulating sufficiency-of-the-evidence review standard)
- United States v. Isabella, 918 F.3d 816 (10th Cir. 2019) (defining "enticement" and substantial step in § 2422(b) cases)
- United States v. Faust, 795 F.3d 1243 (10th Cir. 2015) (clarifying intent and grooming under § 2422(b))
- United States v. Thomas, 410 F.3d 1235 (10th Cir. 2005) (substantial step for enticement can include arranging to meet a minor)
- United States v. Munro, 394 F.3d 865 (10th Cir. 2005) (travelling to a meeting with a minor may be a substantial step)
- United States v. King, 632 F.3d 646 (10th Cir. 2011) (appellate deference to jury verdicts)