United States v. Freeman Eugene Jockisch, 857 F.3d 1122

Background

Freeman Joekisch exchanged internet messages with an undercover officer posing as a 15‑year‑old (“Sara”), repeatedly saying he wanted to “make love” and arranging to meet at her address. He was arrested on arrival.
Joekisch was indicted under 18 U.S.C. § 2422(b) for attempting to persuade a minor to engage in sexual activity; the indictment listed three Alabama statutes the completed act could have violated: second‑degree rape, second‑degree sodomy, and second‑degree sexual abuse.
At trial the district court instructed the jury on § 2422(b) and the elements of the three Alabama offenses but refused Joekisch’s requested unanimity instruction requiring jurors to agree on which specific state statute he intended to violate.
A federal jury convicted Joekisch of violating § 2422(b). He appealed, arguing the court erred by not requiring unanimity as to the particular state statute his attempted persuasion would have violated.
The Eleventh Circuit affirmed, holding that (1) § 2422(b) criminalizes the attempt to persuade a minor to engage in unlawful sexual activity (the persuasion is the proscribed conduct), and (2) when multiple state statutes are listed as potentially implicated, the jury need only unanimously agree that the defendant attempted to induce unlawful sexual activity that would violate at least one of them.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether jury unanimity is required as to which specific state statute a defendant attempted to violate under § 2422(b)	Government: § 2422(b) requires proof that defendant attempted to persuade a minor to engage in sexual activity chargeable under state law; unanimity as to a specific statute is not required so long as jurors unanimously find attempted persuasion of unlawful sexual activity	Joekisch: jury must unanimously agree on which specific statute (i.e., which sexual act) he intended to induce; refusal to give that unanimity instruction was error	The court held no unanimity as to the particular statute is required; jurors must unanimously find attempted persuasion of sexual activity that would violate at least one listed statute.
Whether Joekisch’s requested unanimity instruction was a correct statement of law	—	Requested instruction demanded jury unanimity on a particular state statute as an element of the federal offense	Court: instruction was incorrect because § 2422(b) targets persuasion/attempt, not commission of a particular state offense; refusal was not an abuse of discretion.
Whether the risk of non‑unanimity (different jurors picking different statutes) created a constitutional problem analogous to Richardson	Government: Richardson is distinguishable because it involved an element requiring proof of a particular number of prior predicate offenses; § 2422(b) does not require proving specific prior acts or a particular statute	Joekisch: reliance on Richardson to argue for an “augmented” unanimity requirement	Court: distinguished Richardson and found no comparable risk of jurors convicting on amorphous factual bases; unanimity on the element (attempted persuasion of unlawful sexual activity) sufficed.
Even if unanimity as to statute were required, whether the jury was necessarily unanimous on at least one listed statute	—	Joekisch argued potential juror disagreement about which sexual act was intended could prevent unanimity	Court: all three listed Alabama offenses overlap because sexual intercourse or sodomy necessarily include sexual contact; therefore jurors were necessarily unanimous at least that Joekisch attempted to induce sexual contact (second‑degree sexual abuse), so any unanimity requirement was satisfied.

Key Cases Cited

Richardson v. United States, 526 U.S. 813 (1999) (jury unanimity required for elements that specify number or identity of predicate offenses)
Schad v. Arizona, 501 U.S. 624 (1991) (no bright‑line test distinguishing elements from means; jurors need not agree on a single means)
United States v. Hart, 635 F.3d 850 (6th Cir. 2011) (rejecting required unanimity as to specific state statute under § 2422(b))
United States v. Mannava, 565 F.3d 412 (7th Cir. 2009) (contrary view: held unanimity on specific state statute required)
United States v. Yost, 479 F.3d 815 (11th Cir. 2007) (§ 2422(b) proscribes persuasion/enticement of a minor; underlying sex act need not be completed)
United States v. Murrell, 368 F.3d 1283 (11th Cir. 2004) (attempt convictions under § 2422(b) focus on intent to procure assent and substantial step toward that assent)