United States v. Herbst
2012 U.S. App. LEXIS 1700
| 8th Cir. | 2012Background
- Herbst was convicted after a jury trial of one count of attempting to entice a minor to engage in illicit sexual activities under 18 U.S.C. § 2422(b).
- The incident involved online chats with a detective posing as a 13-year-old, leading to plans to meet at a community center in Low Moor, Iowa.
- Herbst traveled toward Low Moor and was arrested after driving by the meeting location and sending texts directing the purported minor to walk toward the road.
- At trial, Herbst admitted to online sexual conversations but claimed the chats were fantasy and he did not intend to meet the minor; he testified he went to Low Moor to protect the minor rather than to meet her.
- Herbst argued entrapment and sought an entrapment instruction; he also moved for a new trial based on newly discovered evidence suggesting earlier chats.
- He challenged the district court’s denial of a Speedy Trial Act dismissal, insufficiency of the substantial-step evidence, denial of entrapment instruction, and denial of a new-trial motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Speedy Trial Act dismissal on exclusion periods | Herbst argues improper exclusion of time from July 27–Sept 3, 2010 and Aug 16–Oct 4, 2010 | Herbst contends periods should not be excluded | Exclusions proper; no Speedy Trial Act violation |
| Sufficiency of substantial step toward enticement | Evidence showed attempts and travel toward meeting; sufficient for substantial step | No substantial step beyond anticipatory acts | Evidence supported conviction for attempting enticement |
| Entitlement to entrapment instruction | Enticement instruction needed due to government inducement and lack of predisposition | Herbst predisposed; instruction unnecessary | Entitlement to instruction denied; defendant predisposed |
| New trial based on newly discovered evidence | New chats could exculpate by showing entrapment | New evidence would not likely acquit; not material | District court did not abuse discretion; no new-trial warranted |
Key Cases Cited
- United States v. Young, 613 F.3d 735 (8th Cir. 2010) (elements of enticement; court cites test for intent and knowledge)
- United States v. Pierson, 544 F.3d 933 (8th Cir. 2008) (definition of enticement and substantial-step standard)
- United States v. Mims, 812 F.2d 1068 (8th Cir. 1987) (substantial-step standard for attempt)
- United States v. Myers, 575 F.3d 801 (8th Cir. 2009) (driving to meeting location suffices as substantial step; entrapment defense limits)