United States v. Theodore Harmon
593 F. App'x 455
| 6th Cir. | 2014Background
- Harmon posted an online ad seeking a sexual encounter with an 18–24 year‑old involving daddy‑daughter role play; an undercover DHS agent (posing as the father of a fictitious 14‑year‑old “Brooke”) responded.
- In chats, emails, texts, and calls Harmon said he had prior sexual experience with underage girls, described sex acts he intended to perform, sent a nude photo to be shown to “Brooke,” and advised how to avoid stings.
- Harmon arranged a March 14 meeting at a motel; when he arrived he was arrested. A trunk search recovered an overnight bag (condoms, sex toys, ropes, blindfold, lotion, hair clips) and an 18‑pack of beer; his phone contained communications about the meeting.
- Indicted under 18 U.S.C. § 2422(b) for attempting to use interstate commerce to persuade/induce/entice a person he believed to be 14 to engage in sexual activity; he pled not guilty.
- At trial the court admitted Harmon’s statements about prior sex with minors (as evidence of state of mind) and the contents of the overnight bag; the jury convicted.
- District court sentenced Harmon to 168 months’ imprisonment and lifetime supervised release; the Sixth Circuit affirmed on appeal.
Issues
| Issue | Harmon’s Argument | Government’s / District Court’s Position | Held |
|---|---|---|---|
| Admission of statements about prior sexual experience with minors | Statements were improper Rule 404(b) "other‑acts" evidence and unduly prejudicial | Statements were admissible as substantive evidence of Harmon’s state of mind (intent) and admissible under Rule 403 balancing | Admission was not an abuse of discretion; properly admitted to show intent; no plain error on Rule 403 claim |
| Admission of overnight bag contents | Bag items were unrelated, legal to possess, and overly prejudicial | Items were probative of what Harmon anticipated doing and relevant to intent and substantial step | Admission was within district court’s discretion under Rules 402/403; no abuse of discretion |
| Sufficiency of evidence to show intent to entice and substantial step under §2422(b) | Lack of intent to persuade a minor (defense: adult intermediary offered a minor; Harmon was passive or fantasizing) | Communications, photo sent for the minor, planning, travel to motel with bag and beer show intent to induce/entice and a substantial step | Evidence sufficient: a rational juror could find Harmon had intent to persuade/entice and took a substantial step; conviction affirmed |
| Jury Instruction 20 defining "persuade, induce, entice, or coerce" (communications via adult intermediary) | Instruction too broad; could convict for innocuous communications with a parent without proof of intent to entice a minor | Instruction accurately stated the law: government need not show direct child communication; communicating with someone believed to influence the child can suffice; viewed with whole charge it was not misleading | No plain error; instruction accurate and not misleading when read in context |
| Imposition of lifetime supervised release — adequacy of explanation | District court failed to give a specific explanation for lifetime supervised release (procedural error) | Sentence aligned with statutory/guideline authority; court considered §3553(a) factors and PSR; explanation adequate | No plain error; explanation sufficient and sentence reasonable |
Key Cases Cited
- United States v. Berk, 652 F.3d 132 (1st Cir. 2011) (§2422(b) punishes intentional attempt to secure a minor’s assent; attempt requires intent plus substantial step)
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for reviewing sufficiency of the evidence)
- United States v. Wheaton, 517 F.3d 350 (6th Cir. 2008) (circumstantial evidence can establish intent; standards for sufficiency review)
- United States v. Bailey, 228 F.3d 637 (6th Cir. 2000) (distinguishing intent to entice from intent to have sex; §2422(b) targets solicitation itself)
- United States v. Berk, 652 F.3d 132 (1st Cir. 2011) (online communications through adult intermediaries can support §2422(b) convictions)
- United States v. Inman, 666 F.3d 1001 (6th Cir. 2012) (life term of supervised release required adequate explanation where facts differ)
- Rita v. United States, 551 U.S. 338 (2007) (when within Guidelines, less elaborate explanation may be required)
- United States v. Vonner, 515 F.3d 382 (6th Cir. 2008) (plain‑error review of sentencing explanations)