United States v. Nitschke, 843 F. Supp. 2d 4

The case questions whether internet persuasion of a minor can be charged when the defendant only tells an adult intermediary about an interest in sexual activity with a pre-arranged minor.
Nitschke was arrested March 24, 2011 in DC after traveling from Virginia to meet an undercover detective in a pre-arranged encounter involving a fictitious 12-year-old.
Defendant was indicted on (1) Attempted persuasion and enticement of a minor under 18 (18 U.S.C. § 2422(b)) and (2) Travel with intent to engage in illicit sexual conduct (§ 2423(b)).
Count I is challenged by a motions to dismiss, with the entire relevant record stipulated for purposes of the Motion.
The transcripted online chats with the undercover detective, who posed as a parent/guardian of a fictitious minor, are the undisputed facts the Court must consider.
The Court preliminarily determines the dispute is a legal question based on undisputed facts and declines to await trial for resolution.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is there sufficient intent to persuade a minor via the internet?	Nitschke intended to persuade a minor, via the internet, to engage in illicit sex.	Undisputed facts show no intent to persuade a minor through interstate channels.	No reasonable juror could find intent to persuade a minor under § 2422(b).
Did Nitschke take a substantial step toward violating § 2422(b)?	The chats and travel toward a meeting constitute a substantial step.	There were no substantial steps; travel to meet does not satisfy the statute and there was no indirect persuasion.	No substantial step; travel and communications do not constitute a substantial step.
Can indirect persuasion via an adult intermediary satisfy § 2422(b)?	Indirect persuasion through an intermediary can violate § 2422(b).	Indirect persuasion through an intermediary is not demonstrated by the facts here.	Undisputed facts do not show intent to persuade via an intermediary; § 2422(b) not satisfied.
Should the court address the merits pretrial instead of awaiting trial?	Pretrial dismissal is premature and the Government should be allowed to present its case.	Facts are undisputed and the issue is solely legal; pretrial dismissal is appropriate.	Court may decide pretrial on the legal issue; dismissal granted.

United States v. Yakou, 428 F.3d 241 (D.C. Cir. 2005) (pretrial dismissal where undisputed facts test legal issue)
United States v. Ayarza-Garcia, 819 F.2d 1043 (11th Cir. 1987) (discussion of pretrial procedures and issues)
United States v. Phillips, 367 F.3d 846 (9th Cir. 2004) (pretrial dismissal when pure issue of law)
United States v. Levin, 973 F.2d 463 (6th Cir. 1992) (pretrial dismissal when undisputed facts show lack of guilt)
United States v. Laureys, 653 F.3d 27 (D.C. Cir. 2011) (intermediary-based § 2422(b) implications and dissent’s view)
United States v. Murrell, 368 F.3d 1283 (11th Cir. 2004) (necessity of minor's assent in § 2422(b) prosecutions)
United States v. Goetzke, 494 F.3d 1231 (9th Cir. 2007) (definition of substantial step and travel relevance)
United States v. Brand, 467 F.3d 179 (2d Cir. 2006) (intent to entice vs. intent to perform sexual act)
United States v. Lee, 603 F.3d 904 (11th Cir. 2010) (indirect persuasion through intermediary to minor assent)
United States v. Hofus, 598 F.3d 1171 (9th Cir. 2010) (statutory interpretation requiring specific intent to persuade)
United States v. Farley, 607 F.3d 1294 (11th Cir. 2010) (use of internet to contact parent intermediary for minor's sexual act)