*4 TJOFLAT, and Before PRYOR MARTIN, Judges. Circuit PRYOR, Judge: Circuit presented by appeal this question The is supports whether sufficient evidence for attempt- convictions of Van Burén Lee minor, ed enticement U.S.C. 2422(b), attempted production § child (e), 2251(a), §id. and pornography, know- receipt pornography, ing child id. 2252A(a)(2)(A). months, For several postal with a communicated online Lee inspector posing who was “Candi Kane,” “open-minded mother two girls.” beautiful [minor] Lee and Candi that he wanted to know more about Candi whether, how, repeatedly discussed and because are a things “[t]here lot of grant when would police computer Candi Lee sexual access use the days for these daughters, to her produced trap people you if know what I mean.” sent daughters sexually Candi and her Candi ex- assured Lee that she was not a plicit images of him. Eventually police Lee and officer and told him that when she spoke by telephone. Lee also re- was child she “loving was involved in a quested produce that Candi and send to sexual relationship” with her father. Lee him sexually explicit photographs responded by of her asking Candi if she wanted which, in specific poses, girls so far to learn right way.” “[her] knew, as Lee argues explained, she did. Lee that he “All I know Iis love giving communicated with an adult receiving interme- and I giving you believe ’til [in] diary, attempted exploit only ficti- reach orgasm. you Can handle that? Is minors, tious he lacked the you intent neces- that what want for the too?” In sary convictions, support his conversation, the second online again *5 alleged speech expressed without conduct did not his concern that Candi was a attempt establish the police crimes. We affirm. officer. Lee explained that he had been charged once with a sex crime I. BACKGROUND against a child. Candi had not mentioned her daughters during conversation, At early least as this Densley, as Jude explained a but Lee postal federal that he inspector, “talking] feared began investi- ... gating predators. [Candi] online about sex ... Densley especially created concerning a profile daughters.” on [her] the social Without networking website prompting, using pseudonym repeatedly hi5 Lee asked her “Candi Kane.” whether she wanted According profile, to her to “teach” her daugh- Candi was an “open-minded ters in the way same that mother of she had two beautiful been “taught” girls,” when ages seven she was a child. and twelve. Toward profile The conversation, also end of the identified Candi a second as member of Candi online told social Lee that she groups “seeing called “Young Girls someone [ ] and Old- you so if Other,” really er Men are Loving looking your Each for “Dady’s soul [sic] Favourite,” that, mate or something “Family maybe like I’m Love is Best.” trial, you At the one Densley explained should talking with.” phrase trial, At “family Densley euphemism explained love” is a she told incest. Lee that boyfriend Candi had a to deter- September 2007, Lee, In using pseu- mine whether Lee was interested Candi “Doc,” donym contacted Candi via hi5. In or Candi’s daughters. Candi, his first message stated, Lee your “I’m man your to handle all needs.” Because she was managing other inves- message by closed his telling Candi to tigations, Densley did not use Candi’s hi5 you care ... “[t]ake girls.” nearly months, account for two but when 3, 2007, On October Lee and Candi in- Densley used the again account in Decem- separate teracted two online conversa- ber Lee contacted Candi. Lee told tions. During conversation, the first Lee Candi they that since had last communicat- Candi, asked your ed, “What’s sexual orienta- purchased had a motorcycle. new tion and how your girls?” old are Lee Lee stated only his belief that the thing asked why Candi she described herself better than a motorcycle is “helping a profile her open explained minded and young lady become a woman.” Lee then my darlings? you ... little If al- fine how are he had September that in told Candi addressing me them as such.” don’t mind lady become a woman young helped most on to turned [his] [him] “a Mend when Lee offered to send Candi Unprompted, [eleven-year-old] granddaughter.” her photograph penis of his from his cellular happened, had asked what Candi When email address. Candi telephone little had been “a her that there Lee told accept photograph, and Lee agreed oth- around each being nude touching again, unprompted then asked— —whether time er,” “enough had not had that he revealing photo- but send him a Candi would “You way.” explained, go daughters. all the of her and her graph reveal- things explained like that that she did not have never rush should “I I guess but told Lee ing photographs to an- Anyway she moved on her terms. you if want.” Lee an- could take some other state.” swered, if “I’d like that it’s not too much to old again asked Candi how Lee then pho- Candi asked Lee what sort of ask.” and Candi answered daughters, were her wanted, provided and Lee de- tographs and thirteen. eight were now specifications: tailed “I’d like to see let whether she “would Lee asked Candi your on opened legs laying while back and into womanhood.” bring him children [her] style being open with cheeks held doggie virgin “I’ve never had explained, your hands.” will, if I I never but probably chances are pe- photograph Lee then sent a willing that is I could trust had a woman email account. After he nis to Candi’s it.” up I take her help might me out *6 that had received the confirmed Candi would consider told Lee that she Candi Lee asked whether Candi photograph, to her him with sexual access providing going photograph to show the to her was if trust him and he daughters she could that Lee told Candi he want- daughters. Lee told Candi not to harm them. agreed with her photograph her to share the ed and daughters to meet her that he wanted “[t]hey part are of this daughters because “any so time soon.” if he could do asked “it’s fair for they?” aren’t and too was whether she Lee then asked Candi they may getting.” what be them see her access to providing about serious that Lee’s expressed her concern Candi Lee that she assured daughters. Candi daughters, for her large was too penis Lee was and asked whether was serious I’m going “Yeah if explained, and Lee “just like this was all serious or whether taking mad man. It’s about act like some very “I am responded, chat.” Lee fantasy ---- of lubrication my time and lots try- why trying I’m serious and that’s into woman- helping This is about them my trap a .... No to fall into ing [sic] hood, not a fu*****.” love, just ehatting/fan- I am not into online telephone num- gave then Candi his Lee if tasy.” then asked Candi could Lee to call him. Lee ex- and asked her ber she telephone and whether speak on trip a out to ready “I’m to make plained, girls for the age had “an mind asked you guys.” Lee also Candi meet time.” or is now the deflowered photographs he receive the when would stressed that promised communicated online she had and Lee and Candi that and her initiated the con- to see both Candi in December. Lee he wanted again photographs. Candi as- daughters how was. in the and asked Candi she versation and send fine, that she would take and Lee sured Lee him that she was Candi told “Ok that replied, and Lee photographs, you’re doing that to hear replied, “Good he had photographs requested. I’m about that good. serious sounds Candi off, January again Lee told another signing During Before conversation this.” her that wanted to know what told that she and her Candi Lee Candi photograph you of the daughters thought daughters pictures “took the wanted penis. responded, over the weekend.” Lee stated, “Wow, that’s wonderful!” Lee Lee emailed on December Candi “[Tjhanks for it doing that me that he was nervous 2007. Lee told Candi lot.” means a that he about their last conversation and feel better once she had “fulfíll[ed] would Lee and Candi continued to discuss the by sending deal” him end of the [her] possibility visiting of Lee Candi and her daughters. her and her photographs of At the of daughters California. end being explained Lee was afraid of January, Lee Candi how she asked day, arrested. The Candi asked Lee next planned bring picture” him “into the many he wanted her to photographs how boyfriend. of her light having Candi Lee stated that he wanted two each send. explained they could meet when her daughters. Candi and her Lee asked of town, asked, boyfriend was out and Lee daughters agreed Candi whether her had I be visiting your “So will home?” Candi pose requested he also as he had having and Lee discussed Lee sex with her her again asked whether Candi had shown daughters. Candi made clear that she was penis. photograph in having not interested sex with Lee as girls Candi said that she had shown the part “group thing.” agreed photograph asked how the group agree[d] he is “not into [He] stuff. responded. again had Lee also asked very it should be on one [that] one speak telephone. that he and on the Candi special.” Lee then whether asked Candi’s again expressed her concern about daughter older menstruating sought penis, the size Lee’s and Lee to whether she was birth taking pills. control assuage just “Candi I’m fears: know you “I tell explained, have to I’m not *7 very to going very, gentle .... Please condom user.” know, your my are babies babies too 2008, 15, February On Lee and Candi I truly and mean that.” Lee also said again communicated online and discussed wanted daugh- to meet Candi and her possibility having the of sex Lee with Can- help daugh- ters their to home Candi’s daughters. di’s Lee told Candi that if he to feel him. ters more comfortable with daughters had been with her and her “[t]o- Candi, posing Lee and final- Densley, night night would have been the turn to 27, ly spoke telephone on the on December women, [your daughters] you, into and Densley and recorded Lee the call. just queen well feeling you like the are.” and Candi the possibility discussed Lee Lee then invited Candi to watch a live visiting Candi her daughters in Cali- him; accepted video stream of Candi suggested fornia. Lee visit in October Lee At watched masturbate. the end of 2008, and he and Candi discussed which conversation, signed Lee off and told airport was to closest Candi’s home. Lee Candi, my “Tell girls I send lov[e].” and Candi also discussed how should Candi month, Later that asked Lee Candi what Lee photographs send that he had “me, you, the future held for and the requested. girls?” suggested Candi that Lee send conversation, a January presents
In online daughters they her so that Lee asked Candi whether she had taken could familiar him. become with conversation, photographs of purported to contain Candi Can-
During a later online package con- daughters. and her The that she was not interest- clarified again di sexually photographs tained of minors in relationship with Lee and ed a sexual explicit poses. While Candi and Lee were still be interest- Lee would asked whether conversing online on March Lee ex- daughters if he could “teaching” her ed claimed, just “I think the mail arrived!” again clari- with Candi. not have sex to wait while he retrieved having sex Lee asked Candi he was interested fied that pack- mail. Lee retrieved the daughters. Lee also the When with Candi’s pornography porch, of child from his willing give age Candi his that he was stated again him was arrested. Candi never heard that she could send home address so Lee. requested that he had from photographs meet after he suggested grand jury In March federal specifically suggested received them. against returned a three-count indictment daughters and her that he meet Candi alleged that Lee Lee. Count one had because the during the summer use, induce, entice, attempted persuade, Lee said that he would be out of school. person age and coerce a under the and then drive to meet fly could to Utah sexually eighteen explicit con- daughters in California. At Candi and her purpose producing duct for the visual conversation, gave this the end of conduct, depictions of such 18 U.S.C. Eockmart, Georgia, his address in Candi (e). 2251(a), § alleged Count two that Lee if were involved with and asked that she knowingly pornography, had received child his The police, she “lose” address. 2252A(a)(2)(A). id. § al- Count three and tried day next Lee chatted Candi leged attempted persuade, that Lee had penis in another live video to show induce, entice, and coerce an individual Lee asked Candi whether she had feed. engage in age eighteen under the him discussing with her been molestation, child as defined section 288 gifts what kinds of he should and asked 2422(b). Code, id. of the California Penal gave Candi Lee her ad- girls. send trial, all After convicted Lee on box, prom- and Lee post dress at a office counts. three gifts that he would send after he ised sentenced Lee De- The district court following month. received a check the presentence investiga- cember 2008. The and Lee continued to communi- a total offense level of report provided tion During in March 2008. one conversa- cate history a criminal of V. Lee’s *8 tion, told Lee that she had mailed Candi adult con- history criminal included three request- that he had photographs him the police investigat- In Texas victions. told that he had been ed. Lee Candi himself report exposed ed a that Lee had daughters. He looking gifts for for her nine-year-old investigation to a child. The asked if either of the liked Barbie exposed that Lee had himself to revealed looking that he had been at dolls and said during pre- several other individuals possible coloring books and necklaces on a naval ceding year: an adult female gifts. 1979; in neighbor in a Janu- base October 1980; twelve-year-old neighbor’s and a ary last communicated on and Lee jury in A Texas day, postal daughter March 1980. March 2008. On that exposure of and work- convicted Lee indecent Georgia who had been inspector years of a sentence of four Densley arranged govern- to have Lee received ing with 1998, Georgia In probation. October package deliver to Lee a agents ment his second the verdict no trier of fact jury molesting Lee disturb unless convicted adopted— daughter Lee had guilt beyond wife’s could have found reasonable —whom age (internal under the sixteen. girl when the quotation was Id. at doubt.” 818-19 Lee According investigation reports, omitted). to the marks to several exposed girl had himself wife him us- caught occasions. Lee’s also III. DISCUSSION ing a to look underneath the bath- mirror our of Lee’s argu- divide discussion We adopted room his was daughter door while First, parts. explain into two we ments Moreover, showering. in March reject argument and Lee’s he could exposed girl cooking,
while the Lee 2422(b) violated not have either section or her genitals his to and touched her but- 2251(a) (e) he section and because commu- conviction, tocks several times. For this intermediary with an nicated adult and years prison began Lee served five and attempted exploit two fictitious minor five-year serving a sentence of probation Second, girls. we that a explain reason- pro- in October 2003. The terms of Lee’s able could have found Lee com- to, among required bation him other charged mitted the offenses the indict- things, violate the criminal laws of “not ment. unit,” governmental purchase “not or possess any explicit pornographic, sexually A. Need Not Have Communicated material,” stimulating
or “not initiate Directly with Attempted a Minor or contact with nor continue uninitiated con- to Exploit Real Minors. tact with age a child under the 16.” Lee violated the terms of probation time, appeal, pres- On the first trespass. 2005 when he committed criminal arguments against ents two his convictions Georgia police, responding anony- an 2422(b) 2251(a) (e). under sections tip, mous discovered Lee an abandoned First, argues he that he could not have house, which was located the street across violated either communicating statute playground. from a a set of had intermediary, an adult instead of watching binoculars and had been purported argues actual or minors. Lee playground. After considering the adviso- “plain language that the of the statute[s] ry guidelines range sentencing and the inducement, persuasion, covers enticement 3553(a), factors set out U.S.C. minor, of a an coercion adult who district court term of sentenced Lee to a the behavior the minor.” controls Ac- imprisonment of 300 months on of the each Lee, if cording anything, he did counts, three concurrently. served Candi, attempted persuade only an The district court sentenced Lee below adult, provide access to advisory guidelines range and at the statu- produce pornography. and to child Sec- tory mandatory minimum convic- for his ond, argues possibly that he could not production tion of attempted por- of child have violated either statute because “there nography. actual were no children in this case.” *9 arguments These fail.
II. STANDARD OF REVIEW Lee could have convicted un challenged “We review a verdict been 2422(b) novo, though sufficiency for of the der section even he com evidence de only resolving intermediary. all reasonable favor municated with an adult inferences Yost, concedes, squarely reject of the verdict.” United States v. 479 As Lee we have (11th Cir.2007). 815, argument F.3d 818 cannot ed the [the “We “because defen-
913 right to directly apply communicate with a would have been section did not dant] 2251(a) (e) who, to an he believed to be a and individual like person minor or Lee, minor, attempted to child criminally pro produce pornogra- conduct was not his 2422(b).” by communicating only § with language phy of an adult scribed 2251(a) 1283, (e), Murrell, intermediary. 368 F.3d Section and un- States v. United (11th 2422(b), Cir.2004); prohibits attempting see also United like section 1285 1193, Searcy, “employ[] F.3d 1194 & n. to a minor for the [or] use[]” v. 418 States (11th Cir.2005); purpose producing pornography. States v. Horna of child 1 United (11th 1306, argument against applica- 1309-10 Cir. Id. Lee’s day, 392 F.3d 2004). 2422(b) Murrell, tion of to In we concluded section individuals who only of a defendant who communicates communicate with an adult intermedi- conduct intermediary ary with an adult “fits each of the verbs of section —that ” 2422(b) contemplates within the definition of ‘induce.’ direct interaction squarely might persuasion— at also have with a minor aimed at oral 368 F.3d 1287. We 2251(a) (e). entice, persuade, apply that one can or does not to section and explained engage activity minor in sexual coerce a Lee also could have been convict intermediary an adult because through 2422(b) though ed under section even “[sjexual predators attempt can and do attempted exploit only fictitious minors. engage children to sexual persuade acknowledges, As Lee we have held that parents activity through the victim’s or 2422(b) require section does an actual Nestor, v. 574 United States guardians.” 2; minor n. victim. 479 F.3d (3d 159, Cir.2009); n. 4 see F.3d 161-62 & Root, v. 296 F.3d United States Spurlock, 495 F.3d also United States v. (11th Cir.2002); see also United v. States Cir.2007). (8th No matter 1013-14 (8th Cir.2008). Pierson, 2422(b) rationale, prohibits section Adthough Root and Yost involved defen conduct. Lee’s dants who communicated with individuals be, not, but who believed to were The same is true of Lee’s convic minors, why explain argu Lee does not 2251(a) (e). and Sec tion under section stronger ment is because he communicated 2422(b) 2251(a) (e) proscribe tions and and mi only with the mother of two fictitious 2422(b) pro related conduct. Section similarity nors. Because of the material attempting knowingly “per scribes 2422(b) 2251(a) (e), and Lee’s sections ], ], ], or suade[ induee[ entice[ coerce[ ] [a argument against his conviction under sec engage any activity in ... sexual minor] (e) 2251(a) attempting tion to use a any charged can be with person for which minor produce pornography fictitious 2422(b). § a criminal offense.” 18 U.S.C. also fails. (e) 2251(a) prohibits the same Section object is to conduct when the defendant’s B. Supports Evidence Sufficient pornography with the minor rath produce Each Lee’s Convictions. activity er than to sexual (e) 2251(a), (“Any person argues that sufficient evi the minor. Id. induces, entices, support any does not of his three persuades, who ... or dence ”). supports In convictions. Sufficient evidence light minor.... coerces Murrell, if a reasonable could similarity, holding and the Lee’s convictions this beyond have found a reasonable doubt applying court not err the district did “(1) 2251(a) (e) Moreover, intent or mens specific had the section to Lee. *10 Murrell, underlying charged the district court rea to commit the even without 914 (2)
crimes,
government argues
took actions that constitut- The
that it satisfied its
by proving
attempted
burden
that Lee
step
ed a substantial
toward the commis-
Yost,
persuade
agree
Candi’s
sion of
crime.”
479 F.3d
[each]
(alteration
(internal
engage in
agree
sex acts. We
with the
original)
in
quota-
819
omitted).
government.
explained
tion marks
We have
step
that a defendant takes a substantial
explained
We have
what
the
completing
toward
a crime when his “ob- government
prove
must establish to
a vio
jective acts mark his conduct as criminal
2422(b)
lation of section
when
defendant
and,
whole, strongly
as a
corroborate the
directly
mi
target
communicates
with the
(internal
required culpability.”
quota-
Id.
intent,
regard
nor.
govern
With
omitted).
tion marks
.
prove
ment must
that
the defendant in
presents
arguments
two
part
about the
tended to cause assent on the
of the
minor,
First,
sufficiency
specific
of the’ evidence.
with
not that he “acted with the
convictions,
engage
Yost,
intent to
respect
argues
activity.”
to all of his
sexual
3;
Pierson,
915 daugh- steps took to ensure that Candi’s to assent to sexu- daughters cause Candi’s any future sexual en- a ters would welcome and that Lee took with him al contact counter. causing that as- step toward substantial govern- of the Viewing the burden sent. jury A reasonable also could have found a rea- way, in this we conclude
ment
step toward
that Lee took a substantial
could have convicted
jury easily
sonable
daughters to assent to sex-
causing Candi’s
2422(b).
violating section
Lee of
ual contact with him. Lee’s internet and
beyond
... went
telephone “conversations
ample
contains
evidence
The record
preparation,”
mere
and constitute
sub-
fictitious
to cause Candi’s
Lee intended
at-
step
support
stantial
sufficient to
his
with
to sexual contact
daughters to assent
Spurlock, 495 F.3d at
tempt conviction.
presented evidence
government
him. The
in a
or
1014. Lee did not confide
friend
daugh-
in Candi’s
that Lee was interested
journal
to
write in his
about his desire
ters,
In his conversations with
not Candi.
daughters;
have sex with Candi’s
he re-
Candi,
that he was
repeatedly
Lee
stated
quested
from the one woman
assistance
daughters and not
in Candi’s
interested
control over [the]
who had “influence and
Candi,
in another
professed to be
who
sug-
than
daughters.” Id. Lee did more
jury
accept
free to
relationship. The
was
possibility
having
the
sex
gest
with Can-
A reasonable
as true.
Lee’s statements
daughters.
the course of several
di’s
Over
from Lee’s con-
jury also could have found
and,
months,
repeatedly
he
discussed when
par-
stant concern for whether Candi
detail,
graphic
how he wanted to com-
sting that Lee was interest-
ticipating in a
161;
Nestor,
plete
act.
574 F.3d at
See
Candi;
relationship with
in more than a
ed
640;
Bailey,
479
228 F.3d
Candi,
adult,
an
would
relationship
cf.
F.3d at
Much of Lee’s conduct—
law enforcement. See
not have concerned
especially
sending graphic photographs
Pierson,
Although
occurrence of his intended
indicted Lee for an
child,”
induce, entice,
attempt
“persuade,
sex with a
and that Lee must have
step
relationship
taken “a
to extend his
engage
coerce” a minor to
in child molesta-
daughters beyond
with Candi Kane or her
tion.
property Georgia.”
the boundaries of his
in
The
prec-
dissent states that none of our
But
explained,
precedent
as we have
our
edents
upheld
conviction where the de-
precedents many
and the
our sister
fendant “made so little effort to consum-
2422(b) prohibits
circuits hold that section
crime,”
mate the
but our aim is not to
attempts to
agree
cause minors to
to en-
decide whether Lee’s conduct is at least as
conduct,
gage
illegal
attempts
sexual
“criminal” as the conduct of others convict-
engage
in illegal sexual conduct with
2422(b).
ed under section
Each of our
Yost,
minors. See
Bailey,
comfortable around reject reading We also the dissent’s (12) instruction; jury party the neither discussing with Candi travel details has jury raised an issue about the instruction including and easiest travel route meet- good govern- and for reason. In the ing girls in the summer when the would requested charge ment the same from the school; out of here, requested district court that it (13) speaking with Candi on the tele- we affirmed Yost’s because we conviction phone discussing when and how he jury concluded that have could found might travel to to meet the California attempted that target Yost to cause the girls; illegal minors to assent to conduct. sexual (14) again discussing with Candi his vis- case, at Id. 819-20 & n. 3. In this iting girls in and discuss- California court jury district instructed the that the details, ing including his concern that charged indictment attempting with boyfriend complicate Candi’s would entice, “persuade, induce minor to en- plan; gage activity,” in criminal sexual which is (15) occasion, insisting on more than one entirely description an accurate of the in- to Candi that he was not interested dictment and the law. The district court having anyone sex with other than the jury also instructed the that “it’s not nec- girls; minor essary [government prove for (16) asking actually persuaded the oldest the individual was or Candi whether so, and, if girl menstruating engage wheth- induced or enticed to sexual taking pills activity,” again entirely she was birth control which is an accu- er user”; because he is “not a condom rate statement of the law. The district of each government girl, court next instructed how wanted the “prove pose, provided must that the defendant intended his home address so A engage product. some form of unlawful sexual he could view the finished individual,” activity an read but when reasonable could have found that context, instruction Lee’s concern for explained this noth- whether Candi was law than that Lee must enforcement in- ing agent proved more have intend- that he was using ed to convince Candi’s fictitious terested in her minor daughters to activity produce pornography, unlawful sexual which is a crime. not, instance, Pierson, trip to an amusement A See F.3d reason- *14 park. light jury Viewed in the most favorable able also could have disbelieved Lee’s actions, government, the testimony Lee’s “taken as that he was not interested in whole, strongly culpa- daughters corroborate in any way Candi’s and found [his] bility provide and clear evidence his that he was fact both interested in conduct was criminal.” Id. at daughters 820. Candi’s and interested in pro- Brown,
ducing photographs of them. See 2. Supports Sufficient Evidence Lee’s 2251(a)
Conviction Under Section A jury reasonable also could have found (e). and that Lee took a step substantial toward argument respect Lee’s with to using daughters produce Candi’s child attempted production his conviction of of pornography. Lee repeatedly attempted pornography child is identical to argu to initiate the production pornog- of child respect ment with to his conviction of at raphy by requesting sexually explicit pho- tempted urges enticement. He that no tographs and sending photograph jury reasonable could find that he was own. He then the directed creation and producing interested in or viewing photo that, specific photographs distribution of graphs daughters; of Candi’s he was inter knew, far so as he Candi created and sent ested argues Candi. He also that in Georgia. to his home A jury reasonable engaged only “explicit sexual banter” could have attempted found that Lee Candi, which urges cannot consti produce pornography child with Candi and step tute a substantial violating toward daughters. 2251(a) (e).
section similarity and The of 2422(b) 2251(a) (e) sections and and not 3. Sufficient Supports Evidence Lee’s withstanding, parties agree the as to what Conviction Under Section 2252A(a)(2). government proved the must have sup port a attempted production conviction for challenges Lee his conviction for of child pornography: that Lee intentional knowingly receiving child pornography ly attempted to use daughters Candi’s arguing that he did not believe that he was produce pornography. child We conclude receiving pornography. govern child The government that the satisfied its burden. ment charge did not the an offense as
A jury reasonable attempt could have found that because Lee a package received Lee intended to use daughters Candi’s in child pornography. agree We with Lee production pornography. of child government and section 2252A(a)(2) actively planned production photo- requires that he believed that graphs depicted daugh- package Candi’s minor that he received at his home graphic poses. ters in sexual He de- in March pornogra 2008 contained child many scribed how photographs phy. he wanted Eleventh Jury See Circuit Pattern Cases) (Criminal In- Mr. Lee’s conviction under 18 Offense sustain Instructions (2003). 2422(b), my I confine discussion U.S.C. 75.4 struction actually presented to the evidence to the have found that jury could A reasonable jury. majority opinion The includes infor- had received child that he Lee believed Report mation from the Presentence —a believed that Candi pornography. prepared court document Mr. Lee’s after explicit photographs produced sexually had trial conviction. The probation court’s to his daughters and mailed them of her prepared Report officer the Presentence her home in Georgia from Califor- home provided judge, it to the under district did, him that nia because she told she seal, sentencing. an aid The Lee had at- he was elated at the news. never had knowledge saw nor months, to convince tempted, for several information revealed about past. Mr. Lee’s produce and her minor majority’s While the recitation of Mr. photographs sexually explicit send him prior alleged past Lee’s convictions and daughters. clearly believed certainly ugly light conduct casts an *15 were minors. Candi’s character, Mr. Lee’s policies sound caution 7, 2008, mail arrived on March When his against relying on these incidents when online conversation eagerly left an evaluating culpability Mr. Lee’s in this A package. to retrieve his Candi case. Mr. Lee was not on trial for those jury could have found from this reasonable acts, admittedly perverse and the bottom Lee believed that he had evidence that is, course, line of the Presentence pornography. received child Report in In was not evidence this case. event, any I do not undertake to debate IV. CONCLUSION the manner which Mr. Lee has chosen AFFIRM Lee’s convictions. We only to live his life. I mean to address the legally required standard for what is MARTIN, Judge, concurring in Circuit convict of the crime of at- defendant dissenting part: part, tempt. given by I concur with the reasons majority, As set forth Mr. Lee
majority affirming for Mr. Lee’s conviction communicated with Postal United States receiving pornography child and for Inspector Densley, Service Jude known to produce pornography. child attempting Kane, period him as over a of about However, separately, I write dis- Kane told Mr. Lee she six months. Candi sent, because I do not the evidence believe girls, ages was the mother of two seven attempt- Mr. Lee’s conviction for supports twelve, living California. Mr. Lee ing a child to in illicit to entice Georgia. undisputed was in It is that Mr. activity, when all inferences sexual even any step, Lee never took substantial or government. are made on the side of the otherwise, to travel to California. He nev- In for a to be convicted of person order bought er a or train ticket. He crime, plane, bus attempting to commit a he must not never set a date for visit. He never left crime, he must only intend to commit Georgia. step towards com- also take substantial mitting against it. I believe the evidence In order sustain convic- “[t]o [Mr. Lee’s] step Mr. Lee fails the substantial re- (1) tions, we must determine he had the quirement. intent or mens rea to commit the specific (2) crimes, and took underlying charged
Because I address
whether the evi-
step
presented at trial was sufficient to
actions that constituted
substantial
dence
crime.” definition of that term: “to
toward the commission
lead or move
[each]
815,
v.
479 F.3d
819 by
United States
influence or persuasion;
prevail
(11th Cir.2007) (citation
quo-
and internal
(citation,
upon.”
quotation
Id.
internal
omitted).
marks
Precedent
re-
omitted).
tation
marks,
Instead,
and alteration
attention to
quires
pay
us
close
both
panel adopted
the definition “to stimu-
requirements
attempt
for an
conviction.
of; cause,”
late the occurrence
and found
We have said that the second element
negotiations
that Mr. Murrell’s
with the
charge
an
the defendant
attempt
purported father of the fictitious child
—whether
gov-
step requires
took a substantial
were intended to stimulate the occurrence
—
beyond a
prove
ernment
reasonable
illegal
sexual conduct with that child.
acts,
objective
doubt that “the defendant’s
(citation,
marks,
Id.
quotation
internal
accompanying
without
reliance on the
omitted).
this,
upon
alteration
Based
I do
rea,
mens
mark the defendant’s con not read Murrell
to obviate the need for
criminal.”
duct as
United States v. Car
proof that a defendant took a substantial
(11th Cir.1997)
others,
121 F.3d
step
stimulating
towards
the occurrence of
Oviedo,
(citing United States v.
525 F.2d
goal
having
intended
sex with a
(5th Cir.1976)).1
words,
“In other
child.
acts,
whole,
the defendant’s
taken as a
noteworthy
It is also
the district
strongly
must
required
corroborate the
judge in Mr. Lee’s case instructed the
culpability;
they must not
equivocal.”
jurors that,
convict,
order to
would
McDowell,
v.
United States
*16
required
to find that
government
the
(11th Cir.1983).
428
proved beyond a reasonable doubt “that
I well
understand
the act criminal-
the defendant
engage
intended to
in some
2422(b)
§
ized
knowingly
18 U.S.C.
is to
form
activity
of unlawful sexual
with an
(or
coerce)
entice
persuade,
induce or
a
individual and knowingly
willfully
took
in
activity.
child to
criminal sexual
some action that
step
substantial
majority
The
describes the crime as at-
bringing
toward
about and
in
engaging
the
tempting to
part
cause assent on the
of the
(Trial
486.)
activity.”
sexual
Tr.
This was
minor, citing
holding
our
in United States
jury
the
charge requested by
govern-
(11th
Murrell,
Cir.2004).
v.
921
step
day.
much more substantial
towards
near her house for 9:30 a.m. the next
took a
at
up,
Id.
817. Mr. Yost did not show
but
than did Mr. Lee.
violating that statute
later,
was arrested one week
when he ar-
began
internet chats with
Mr. Murrell
rived at the time and location of another
13-year-old girl
parent
purported
meeting
planned
he had
with a second
16,
Murrell,
F.3d
September
on
2002.
368
fictional child.
In concluding that Mr.
arranging meeting
for
at 1284. After
Yost’s failure to arrive at the
meeting
first
24, 2002, Mr. Murrell arrived
September
dispositive,
quoted
was not
we
the Tenth
designated Holiday
teddy
Inn with a
at the
proposition
Circuit
that he had
condoms,
bear,
and the
he had
$300.00
“ ‘crossed the line from “harmless banter”
agreed
pay
for sex with the child. Id.
to inducement the moment he began mak
at
Mr. Lee was arrested at his
ing arrangements
minor],
to meet
not
[the
home,
he went to his mailbox.
withstanding the lack of evidence that he
press
I do not
the view that travel is
”
supposed
traveled to the
meeting place.’
required for a conviction under 18 U.S.C.
at
(quoting
Id.
820
United States v. Thom
2422(b).
already
§
decided
This Court has
(10th
as,
1235,
Cir.2005)).
410 F.3d
820;
that it is not. See
479 F.3d
that Mr.
We found
Yost crossed that same
Gladish,
see also United States v.
536 F.3d line when he held online chats with the
(7th Cir.2008).
However, my
re- minor,
talked to her on the telephone,
jurisprudence
view of the
of this circuit posted pictures
genitalia,
and made
does not reveal
defendant convicted arrangements
to meet her at a certain
2422(b)
having
so
under section
after
made
place.
time and
Id.
little effort to consummate the crime.
Mr. Lee communicated with Candi Kane
Root,
example,
For
United States v.
beginning
September
2007 until his
(11th Cir.2002),
the defen-
arrest on March
2008. To the extent
2422(b)
dant convicted under 18 U.S.C.
there was conversation about
meeting
himself
a purported
introduced
13- person,
plans
were never more than
*17
Internet,
year-old
days
on the
and three
general talk
happen
about what could
later drove from North
to the
Carolina
Inspector Densley
the future.
testified at
Georgia
ap-
Mall of
to meet her at the
during
telephone
trial that
conversation
pointed
place.
time and
Id. at 1228. In
27, 2007,
on December
Mr. Lee said he
(11th
v.
United States
webcam for the v. ever, I no fact in this case demonstrat- see SHINSEKI, Secretary K. Eric ing step that Mr. Lee ever took Affairs, Respondent- Veterans relationship with Candi Kane or extend his Appellee. daughters beyond the boundaries of No. reason, 2009-7066. Georgia. For that property I there that Mr. proof do not believe Appeals, States Court of United step Lee took a towards entic- substantial Federal Circuit. ing a child to in illicit sexual con- duct, April and I would vacate his conviction for attempting that crime.
Furthering argument Mr. Lee’s —even I an limited extent do here4—is not
easy task. His interaction with Candi disturbing,
Kane is and their conversations way I in no
repugnant. intend to minimize
the threat that sexual predators pose to in our society
children or the life-shatter-
ing effects their actions have on their vic- Nevertheless,
tims. I write out of concern majority opinion clearly
that the does despicable
demarcate but lawful talk from attempt punishable by criminal up to
thirty years reason, in prison. For this I
respectfully majority’s dissent from the de- uphold
cision to Mr. Lee’s conviction pur- 2422(b).
suant to 18 U.S.C. *18 you place majority, out there and have meet me some 4. As set forth Mr. Lee was perhaps .... I have a friend in Utah so I’ll sentenced to 300 months of incarceration on counts, fly you. you there then drive to Do visit know each of three to be served concurrent- case, you City?” ly. being how far are from Salt Lake This even if we were {Id. 5.) conviction, 2422(b) There were no further conversations reverse the section we meeting change about before Mr. Lee's arrest would Mr. Lee’s term of incarcer- by single day. March ation