989 F.3d 649
8th Cir.2021Background
- During the 2016 Sturgis Motorcycle Rally, Zupnik posted a Craigslist Casual Encounters ad titled “Bang a biker!! :)” (section requires users to indicate age 18+).
- An undercover officer posing as a 15-year-old girl (“Kelli”) responded; initial contacts were via Craigslist email, then moved to text messages.
- After “Kelli” disclosed she was 15, Zupnik continued sexually explicit communications, asked about specific sex acts, arranged to meet at a high school, and arrived in his car; he was arrested on arrival.
- Zupnik was indicted for attempted enticement of a minor under 18 U.S.C. § 2422(b).
- At trial the district court denied a motion for acquittal, gave an entrapment instruction, and the jury convicted; Zupnik received the 10-year mandatory minimum sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdictional use of interstate commerce (§2422(b) element) | Gov’t: Zupnik used an internet-capable cell phone and Craigslist/texts routed via internet, satisfying the interstate-commerce facility element. | Zupnik: Craigslist emails didn’t show a minor’s age; texts were sent through a law-enforcement internet system and not shown to be his internet use. | Affirmed. Jury could reasonably find Zupnik used an internet-capable cellular phone/computer and internet channels satisfied the jurisdictional element. |
| Requisite criminal intent to entice a minor | Gov’t: Content of messages, explicit sexual questions, arranging a meeting, and continuing after age disclosure show intent to persuade/entice. | Zupnik: “Kelli” initiated contact and appeared willing; he showed hesitancy after learning her age, so intent to entice a minor is lacking. | Affirmed. Intent can be inferred from sexualized communications, persistence after age disclosure, and conduct arranging a meeting. Willingness of the minor does not negate intent. |
| Entrapment (predisposition) | Gov’t: Even though agents initiated contact, Zupnik promptly and enthusiastically seized the opportunity, showing predisposition. | Zupnik: Government induced the crime and did not prove he was predisposed to solicit a minor or to overcome a minor’s will. | Affirmed. Evidence that Zupnik responded promptly, continued sexual communications after age disclosure, and arranged the meeting was sufficient to disprove entrapment beyond a reasonable doubt. |
Key Cases Cited
- United States v. Strubberg, 929 F.3d 969 (8th Cir. 2019) (elements of §2422(b) and attempt explained)
- United States v. Young, 613 F.3d 735 (8th Cir. 2010) (entrapment instruction and inducement standards)
- United States v. Patten, 397 F.3d 1100 (8th Cir. 2005) (willing minor does not preclude §2422(b) conviction)
- United States v. Riepe, 858 F.3d 552 (8th Cir. 2017) (intent inferred from sexual discussions and arranged meetings)
- United States v. Shinn, 681 F.3d 924 (8th Cir. 2012) (online sexual conversations support intent for attempted enticement)
- United States v. Myers, 575 F.3d 801 (8th Cir. 2009) (examples of government inducement and predisposition analysis)
- United States v. Havlik, 710 F.3d 818 (8th Cir. 2013) (Internet is instrumentality of interstate commerce)
- United States v. Trotter, 478 F.3d 918 (8th Cir. 2007) (Internet as channel of interstate commerce)