United States v. Hart
2011 U.S. App. LEXIS 6332
| 6th Cir. | 2011Background
- Hart was convicted under 18 U.S.C. §2422(b) of attempting to persuade a minor to engage in unlawful sexual activity and under 18 U.S.C. §2251 of attempting to persuade a minor to engage in sexually explicit conduct for producing visual depictions, based on online chats with an undercover detective posing as a 14-year-old girl.
- The district court sentenced Hart to concurrent mandatory-minimum terms of 120 months and 180 months, totaling 180 months.
- Hart appealed arguing (1) failure to give an augmented unanimity instruction identifying the underlying state offense, (2) that §2422(b) and §2251 are overbroad or vague, and (3) sentencing violated Double Jeopardy, Due Process, and Eighth Amendment.
- The underlying Kentucky offenses could have been sodomy in the third degree or rape in the third degree; Hart’s chats showed attempts to engage in sexual activity with a minor.
- Hart requested an augmented unanimity instruction; the court denied it; the jury returned a general verdict on both counts.
- Hart was sentenced based on Grouping under U.S.S.G. §3D1.2, with base level 32 under §2G2.1 and enhancements for minor age, computer use, and perjury.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether augmented unanimity was required for §2422(b) | Hart | Hart | Not required; no unanimity on specific means needed. |
| Constitutionality and vagueness/overbreadth of §2422(b) and §2251 | Hart | Statutes are not vague or overbroad; persuade has ordinary meaning. | Vagueness/overbreadth challenges rejected. |
| Constitutionality of Hart's sentence (Double Jeopardy/Due Process/Eighth Amendment) | Hart | Mandatory minimums proper; no constitutional violation. | No plain-error reversible relief; sentence affirmed. |
| Eighth Amendment proportionality of §2251 sentence | Hart | Mandatory 15-year minimum not grossly disproportionate. | Not grossly disproportionate; upheld. |
| Double Jeopardy applicability of two statutes with same conduct | Two offenses require distinct elements; no Double Jeopardy violation. |
Key Cases Cited
- United States v. Bailey, 228 F.3d 637 (6th Cir. 2000) (not vague or overbroad; §2422(b) criminalizes persuasion/attempts to persuade minors)
- United States v. Mannava, 565 F.3d 412 (7th Cir. 2009) (augmented unanimity not required in §2422(b) case)
- Richardson v. United States, 526 U.S. 813 (1999) (continuing-criminal-enterprise statute; distinguishes elements from means)
- United States v. Davis, 306 F.3d 398 (6th Cir. 2002) (aiding-and-abetting distinction; no unanimity on various means needed)
- Schad v. Arizona, 501 U.S. 624 (1991) (general verdicts need not specify one means of commission)
- United States v. Krimsky, 230 F.3d 855 (6th Cir. 2000) (unanimity when count has multiple bases for conviction not required)
- United States v. Algee, 599 F.3d 506 (6th Cir. 2010) (single-count unanimity analysis for multiple theories)
- United States v. Panfil, 338 F.3d 1299 (11th Cir. 2003) (plain-meaning of terms like persuade supports vagueness finding)
- United States v. Gagliardi, 506 F.3d 140 (2d Cir. 2007) (persuade/entice terms possess ordinary meaning)
- Tykarsky v. Delaware, 446 F.3d 458 (3d Cir. 2006) (helpful for vagueness analysis of §2422(b))
- United States v. Hughes, 632 F.3d 956 (6th Cir. 2011) (upheld 10-year §2422(b) minimum as not grossly disproportionate)