997 F.3d 481
2d Cir.2021Background:
- Defendant Muhammad Waqar (using alias "Muhammad Alli") communicated online with an undercover account "Jenny" who posed as a 12‑year‑old.
- Over ~10 days Waqar offered gifts/money, sent pornographic images, repeatedly solicited sexual activity, and arranged a meeting to pay Jenny’s $50 phone bill in exchange for sex.
- Waqar met the prearranged location carrying a condom, a phone used in the chats, and $50; he was arrested and indicted for attempted enticement under 18 U.S.C. § 2422(b).
- At trial Waqar requested a jury instruction that conviction requires proof he sought to "transform or overcome" the minor’s will; the district court declined and instructed jurors to apply the statutory verbs' common meanings.
- A jury convicted Waqar; he was sentenced to 120 months; on appeal the Second Circuit reviewed de novo and affirmed, holding the requested instruction was incorrect.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2422(b) requires proof the defendant sought to "transform or overcome" the minor’s will before conviction | Gov't: statute proscribes attempts to persuade/induce/entice/coerce under their ordinary meanings; no such extra element is required | Waqar: the verbs imply overcoming a contrary will; jury must be instructed that attempt must target a resistant will | Court: Rejected Waqar; statutory verbs have plain common meanings and do not require proof the defendant sought to overcome or transform the victim’s will |
Key Cases Cited
- United States v. Gagliardi, 506 F.3d 140 (2d Cir. 2007) (§ 2422(b) verbs have plain and ordinary meanings; statute not unconstitutionally vague)
- United States v. Hite, 769 F.3d 1154 (D.C. Cir. 2014) (discussed by defendant for "transform or overcome" formulation; Second Circuit declines to follow)
- United States v. Joseph, 542 F.3d 13 (2d Cir. 2008) (defendant’s intent, not mere effect on victim, is required for attempt under § 2422(b))
- United States v. Brand, 467 F.3d 179 (2d Cir. 2006) (grooming behavior can support § 2422(b) conviction even if undercover agent initiated sexual topic)
- United States v. Broxmeyer, 616 F.3d 120 (2d Cir. 2010) (discussing meanings of persuade/induce/entice in related statutes)
- United States v. Zupnik, 989 F.3d 649 (8th Cir. 2021) (rejected Hite‑based sufficiency challenge; a seemingly willing minor can still be "persuaded" or "enticed")