United States v. Gustavo Olvera
2012 U.S. App. LEXIS 14076
5th Cir.2012Background
- Olvera was indicted on one count of attempting to persuade, induce, or entice a minor to engage in sexual activity and one count of receipt of child pornography.
- For purposes of dismissal, Olvera stipulated to facts in the criminal complaint detailing emails with an adult (Whittington) about meeting a son who was eleven.
- Whittington, after arrest, allowed the government to use his identity to continue communications with Olvera; Olvera expressed explicit sexual intent toward the son.
- Olvera sent a picture of his erect penis and discussed sex acts; he and the agent agreed to meet at an apartment with lubricants and condoms.
- Olvera arrived, admitted intent to have sex with the eleven-year-old, and was arrested; he argued there was no direct contact with a child, only with an adult.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether contacting an adult intermediary violates § 2422(b). | Olvera argues no direct child contact, so no violation. | Olvera contends statute targets direct contact with a minor; intermediary contact is insufficient. | Yes, intermediary conduct can violate § 2422(b). |
| Whether there was a substantial step toward enticing a minor. | Olvera took substantial steps (pictures, videos, meeting arrangement). | No direct child contact yet, so insufficient under the substantial step test. | Olvera took a substantial step toward enticing a minor. |
| Whether the defendant intended to entice a minor through an intermediary. | Olvera directed inducements toward the son via the intermediary. | Intermediary-targeted intent should not satisfy § 2422(b). | Yes, intent to entice a minor through an intermediary satisfies the statute. |
| Whether the plain language unambiguously covers Olvera’s conduct. | Language targets ‘any individual’ not attained by 18; intermediary use is encompassed. | Legislative history might suggest direct contact was required. | Plain language unambiguously covers Olvera’s conduct. |
Key Cases Cited
- United States v. Berk, 652 F.3d 132 (1st Cir. 2011) (addresses intermediary communications under § 2422(b))
- United States v. Douglas, 626 F.3d 161 (2d Cir. 2010) (intermediary communications can support conviction)
- United States v. Nestor, 574 F.3d 159 (3d Cir. 2009) (construes § 2422(b) in light of intermediary contact)
- United States v. Spurlock, 495 F.3d 1011 (8th Cir. 2007) (intermediary contact suffices under § 2422(b))
- United States v. Murrell, 368 F.3d 1283 (11th Cir. 2004) (requires analysis of direct assent by minor (dissent cited))
- United States v. Lee, 603 F.3d 904 (11th Cir. 2010) (upholds conviction where intermediary steps toward minor are evident)
- Tidewater Inc. v. United States, 565 F.3d 299 (5th Cir. 2009) (plain-language approach when statute unambiguous)