794 F.3d 1016
8th Cir.2015Background
- Undercover DCI/FBI sting posted an ad offering young girls for prostitution during the Sturgis Rally; agent Schnabel posed as "Terry Smith."
- Larive responded, agreed after negotiation to trade a cell phone for one hour of sex with a purported 15‑year‑old, and arranged to meet at a Hardee’s in Belle Fourche the same evening.
- Law enforcement surveilled Larive; an undercover vehicle was parked in the Hardee’s lot as the purported escort vehicle.
- Larive was observed leaving his residence, stopping at a gas station visible to the Hardee’s, then entering the Hardee’s lot, driving past the undercover vehicle, exiting the lot, and driving away; officers stopped him within minutes and recovered a cell phone.
- Larive admitted intent to trade the phone for sex with the 15‑year‑old but claimed he intended to speak to "Smith" before proceeding and thus abandoned the attempt.
- He was charged under 18 U.S.C. §§ 1591 and 1594(a) for attempted commercial sex trafficking; the district court denied a Rule 29 motion and the jury convicted. On appeal, Larive challenged sufficiency of the evidence on the attempt element.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Larive) | Held |
|---|---|---|---|
| Whether evidence was sufficient to prove attempt to commit commercial sex trafficking (substantial step) | Negotiations to trade a phone for sex with a 15‑year‑old plus travel to the agreed meeting place constitute a substantial step | Driving past the undercover vehicle and leaving shows abandonment before taking a substantial step; Joyce controls | Affirmed — negotiations + travel satisfied substantial‑step; once attempt completed, abandonment defense unavailable |
Key Cases Cited
- United States v. Mims, 812 F.2d 1068 (8th Cir. 1987) (defines "substantial step" and standard for attempt)
- United States v. Blue Bird, 372 F.3d 989 (8th Cir. 2004) (intent and substantial step elements for attempt)
- United States v. Spurlock, 495 F.3d 1011 (8th Cir. 2007) (online arrangement to have sex with purported minor can be a substantial step)
- United States v. Pierson, 544 F.3d 933 (8th Cir. 2008) (elements of § 2422(b) enticement prosecutions)
- United States v. Young, 613 F.3d 735 (8th Cir. 2010) (traveling to meeting with a minor is a substantial step; abandonment defense unavailable after attempt complete)
- United States v. Joyce, 693 F.2d 838 (8th Cir. 1982) (insufficient evidence of substantial step where defendant left without intent to return)
- United States v. May, 476 F.3d 638 (8th Cir. 2007) (standard of review on sufficiency challenges)