UNITED STATES of America, Plaintiff-Appellee, v. Timothy WEST, Defendant-Appellant.
No. 04-7091.
United States Court of Appeals, Tenth Circuit.
March 30, 2005.
Applying these principles, we have conducted a review of the pleadings, the record on appeal, and the district court‘s decision. For purposes of judicial economy, we decline to duplicаte the magistrate judge‘s comprehensive analysis on the same issues presented to this court on appeal, other than to conclude Mr. West fails to make a substantial showing of the denial of a constitutional right, as required by
Thus, for substantially the same reasons set forth in the magistrate judge‘s August 30, 2004 Recommendation and the district court‘s September 10, 2004 Order, we DENY Mr. West‘s request for a certificate of appealability, DENY his request to proceed in forma pauperis, and DISMISS his appeal.
UNITED STATES of America, Plaintiff-Appellee, v. Timothy WALES, Defendant-Appellant.
No. 04-8071.
United States Court of Appeals, Tenth Circuit.
March 30, 2005.
James H. Barrett, Office of the Federal Public Defender, Cheyenne, WY, for Defendant-Appellant.
Before SEYMOUR, ANDERSON, and BRISCOE, Circuit Judges.
ORDER AND JUDGMENT*
STEPHEN H. ANDERSON, Circuit Judge.
Defendant/Appellant Timothy Wales was found guilty following a bench trial of one count of attempting to entice a minor to engage in illegal sexual activity, in violation of
Wales challenges his conviсtion on the grounds that (1) the government produced insufficient evidence to support his conviction for attempt; and (2) even if there was sufficient evidence that he attempted to commit the crimes as charged, he abandoned or renunciated his criminal purpose. He does not challenge his sentence. We affirm his conviction.
BACKGROUND
In the afternoon of December 14, 2002, Wyoming Division of Criminal Investigation (“DCI“) Special Agent Flint Waters was in an Internet chat room using the name “angelgirll2yo” when he received a request to engage in a private “chat” with someone using the Internet name “caspercock.” Agent Waters examined the Yahoo profile for “caspercock,” which indicated that “caspercock” was a “single and good looking” “male” from Casрer, Wyoming, and that his name was “Needs Sex.” The profile further indicated that his hobbies were “doggie style, missionary, anal, oral, I Love it all. Any women wanna fuck.” “Caspercock” listed his occupation as “Sex, sex, and more sex” and listed his interests as “Kinki Kids.”
The initial private chat included the following exchanges:
caspercock (1:26:46 PM): hello, enjoying yourself?
angelgirll2yo (1:26:53 PM): its ok
angelgirll2yo (1:26:57 PM): kinda quiet
caspercock (1:27:15 PM): what you doing?
angelgirll2yo (1:27:26 PM): just chattin
caspercock (1:27:49 PM): cool,
caspercock (1:28:05 PM): I like your name, got a pic?
angelgirll2yo (1:28:13 PM): no sorry
caspercock (1:28:23 PM): that‘s ok.
caspercock (1:28:28 PM): u really 12?
angelgirll2yo (1:28:35 PM): ya
caspercock (1:28:50 PM): that‘s cool
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
caspercock (1:29:08 PM): I‘ve never chatted with someone 12 on here.
angelgirll2yo (1:29:16 PM): ok, nice meetin u tho
caspercock (1:29:24 PM): nice meeting you too.
caspercock (1:29:30 PM): I‘m 21
Appellee‘s App. at 1. During the chat, “caspercock” also activated a web camera permitting Agent Waters to watch “caspercock” while he typed.
Approximately ten minutes into the chat between “caspercock” and Agent Waters, the Agent received a request to chat privately with someone using the Internet name “sassyangelgoddess.” The Yahoo profile for “sassyangelgoddess” indicated that the Internet name belonged to “Shawna,” who listed her age as eighteen. “Shawna” listed her hobbies as “I like to eat pussy, I‘m reаlly 14” and her occupation as “Sex.” The profile included a photo which appeared to depict an adolescent nude girl with her finger in her vagina.
Agent Waters then chatted with “caspercock” and “sassyangelgoddess” simultaneously. Because he could see “caspercock” on his web camera, Agent Waters was able to determine that the same person wаs both “caspercock” and “sassyangelgoddess.” The continued chat session between “caspercock” and “angelgirll2yo” included the following exchanges:
caspercock (2:09:04 PM): I wanted to hear your voice, and I was thinking about letting you see me.
angelgirll2yo (2:09:15 PM): ok but I am in cheyenne
caspercock (2:09:49 PM): U ever seen a guy naked before?
angelgirll2yo (2:10:15 PM): not all the way
caspercock (2:10:27 PM): What‘s the most you‘ve seen?
angelgirll2yo (2:10:41 PM): well I saw a guys thing before
caspercock (2:10:52 PM): cool.
caspercock (2:11:03 PM): u wanna see mine?
angelgirll2yo (2:11:09 PM): ok
caspercock (2:11:46 PM): ok here it is.
angelgirll2yo (2:11:58 PM): wild
Id. at 3-4. At this point, Wales exposed his penis on the web camera and masturbated. The chat continued:
caspercock (2:28:03 PM): I have never been with someone so young before
angelgirll2yo (2:28:12 PM): ya? why me?
caspercock (2:28:39 PM): you have a great personality
angelgirll2yo (2:28:45 PM): thanks a lot, u r sweet
* * * *
caspercock (2:34:38 PM): I would do anything to get with you.
angelgirll2yo (2:34:48 PM): ya, what all woud you wantta do?
caspercock (2:35:13 PM): I‘d wanna hold you close, and kiss you.
angelgirll2yo (2:35:36 PM): ok
caspercock (2:35:51 PM): Touch you, And make love to you.
angelgirll2yo (2:36:01 PM): wow, u know I am a virgin right?
caspercock (2:36:26 PM): That‘s ok. I would love to show you.
* * * *
caspercock (2:41:42 PM): You have a way to take any pictures?
angelgirll2yo (2:41:49 PM): I got a instant camera
caspercock (2:42:03 PM): cool
angelgirll2yo (2:42:05 PM): my freidn has a scanner
caspercock (2:42:16 PM): I‘d love to get some of you. caspercock (2:42:23 PM): You wanna get wild?
angelgirll2yo (2:42:27 PM): like how
caspercock (2:43:00 PM): Take piсtures of your pussy for me.
angelgirll2yo (2:43:09 PM): rely? wow, what you gonna do with them
caspercock (2:43:23 PM): And I‘ll send some back of mine
angelgirll2yo (2:43:34 PM): of your thing?
caspercock (2:43:50 PM): I‘d probably use them to get off, untill I got down there with you.
angelgirll2yo (2:43:57 PM): lol, wild
caspercock (2:43:59 PM): yes
caspercock (2:44:12 PM): that Idea turn u on?
angelgirll2yo (2:44:16 PM): kinda
caspercock (2:45:05 PM): Pictures of you fingering yourself
angelgirll2yo (2:45:30 PM): tell u what, u send me pics of what you wanna see and I will try to make them like that
angelgirll2yo (2:46:05 PM): I will have to go to carias house for a while after to scan them and NO giving them to anyone
caspercock (2:46:05 PM): I‘ll try to find some
angelgirll2yo (2:46:13 PM): promise!
caspercock (2:46:15 PM): ok
* * * *
caspercock (3:17:05 PM): ok, there are 3 of them
angelgirll2yo (3:17:57 PM): ok, wow, how old is she?
caspercock (3:18:13 PM): 17
angelgirll2yo (3:18:19 PM): wild
angelgirll2yo (3:18:23 PM): looks younger
angelgirll2yo (3:18:31 PM): ok be back later
angelgirll2yo (3:18:38 PM): she your gf?
caspercock (3:19:13 PM): no, I don‘t have a g/f.
angelgirll2yo (3:19:26 PM): ok, you no her?
caspercock (3:19:51 PM): just a friend of my adopted sister
angelgirll2yo (3:20:19 PM): ok, I wil be back on later if everything goes good, latеrs
Id. at 4-7. At some point, Agent Waters received an email from the email address caspercock202@yahoo.com, which included three photos, one depicting a close-up of a vagina and two depicting a vagina with an object inserted into the vagina.
As indicated, while “caspercock” and “angelgirll2yo” were chatting, “caspercock,” using the Internet name “sassyangelgoddess,” initiated a simultaneous chat with “angelgirll2yo.” That chat included the following exchanges:
sassyangelgoddess (1:36:47 PM): u ever had sex?
angelgirll2yo (1:37:07 PM): not all the way
sassyangelgoddess (1:37:15 PM): too bad.
angelgirll2yo (1:37:19 PM): y?
sassyangelgoddess (1:37:34 PM): It feels great
* * * *
sassyangelgoddess (1:40:49 PM): I know a guy who would love to let you go all the way.
angelgirll2yo (1:41:00 PM): realy? is he cool
sassyangelgoddess (1:41:28 PM): yeah, but he‘s older.
angelgirll2yo (1:41:31 PM): thats ok sassyangelgoddess (1:41:39 PM): in his 20‘s.
angelgirll2yo (1:41:42 PM): wild
sassyangelgoddess (1:41:51 PM): very
angelgirll2yo (1:41:57 PM): where dos he live?
sassyangelgoddess (1:42:29 PM): Casper.
angelgirll2yo (1:42:40 PM): cool but I live in Cheyenne
* * * *
sassyangelgoddess (1:50:56 PM): you have a cam?
angelgirll2yo (1:51:02 PM): no wish I did
sassyangelgoddess (1:51:27 PM): would u show him your puss
sassyangelgoddess (1:51:29 PM): y if
sassyangelgoddess (1:51:32 PM): you did?
angelgirll2yo (1:51:49 PM): I gess but no cam, I got a poleroid camera tho
sassyangelgoddess (1:52:26 PM): cool
angelgirll2yo (1:52:33 PM): I had some wild pics some guy sent me but my mom broke the zip drive
sassyangelgoddess (1:52:39 PM): do u have a scanner?
angelgirll2yo (1:52:50 PM): no, my frend does
sassyangelgoddess (1:53:35 PM): Cool, you need to take some pictures of you naked, and get them sсanned on a disk.
* * * *
angelgirll2yo (1:54:13 PM): don‘t have anyone to take the pics tho
sassyangelgoddess (1:54:40 PM): do it in a mirror, or have a girlfriend dso it.
angelgirll2yo (1:54:56 PM): ya rather have a guy do it u no? hard to ask someone
sassyangelgoddess (1:55:41 PM): yeah
sassyangelgoddess (1:56:18 PM): He have a cam?
angelgirll2yo (1:56:24 PM): ya he is on it
sassyangelgoddess (1:56:43 PM): have him show u his cock?
angelgirll2yo (1:56:55 PM): I cant ask him that, gees
* * * *
angelgirll2yo (2:48:13 PM): I think I am gonna do some pics for him
angelgirll2yo (2:48:19 PM): do you think I shoud
sassyangelgoddess (2:48:33 PM): yeah
angelgirll2yo (2:48:58 PM): man, this is wild, can I add u?
sassyangelgoddess (2:49:02 PM): don‘t the thought of some guy jerking off over you just make you wet?
angelgirll2yo (2:49:10 PM): prety wild
angelgirll2yo (2:49:15 PM): I bet you get that a lot huh
sassyangelgoddess (2:49:24 PM): uh huh
angelgirll2yo (2:51:30 PM): he is sending me what he wants me to do
sassyangelgoddess (2:52:49 PM): u gonna do it?
angelgirll2yo (2:53:01 PM): sure if its something cool
sassyangelgoddess (2:53:22 PM): ok
* * * *
angelgirll2yo (2:54:58 PM): your profile pic is pretty cool
sassyangelgoddess (2:55:47 PM): Give him one like that
angelgirll2yo (2:56:21 PM): I will try, not sure how to hold the сam tho
sassyangelgoddess (2:56:36 PM): with one chatting angelgirll2yo (2:58:09 PM): hes leaving
angelgirll2yo (2:58:15 PM): I must have been to forward
angelgirll2yo (2:59:19 PM): he said he thinks hes falling in love, playa, lol
angelgirll2yo (3:00:14 PM): ok got one good pic so far BUZZ!!!
angelgirll2yo (3:04:48 PM): u there girl, got one good one taken, working on more
angelgirll2yo (3:05:31 PM): hard to get the light right
sassyangelgoddess (3:06:07 PM): that‘s ok
angelgirll2yo (3:06:12 PM): they keep coming out dark
sassyangelgoddess (3:06:47 PM): go in the bathroom
angelgirll2yo (3:06:59 PM): good idea, I am waiting to see what he wants me to do then I will
sassyangelgoddess (3:10:18 PM): just tell him brb
angelgirll2yo (3:10:47 PM): I thought I would look at the pics to get ideas and then go take them
sassyangelgoddess (3:11:32 PM): oh ok.
angelgirll2yo (3:13:03 PM): nothing yet but probably soon
sassyangelgoddess (3:15:32 PM): cool
Id. at 8-12.
The next day, December 15, 2002, Agent Waters as “angelgirll2yo” and “caspercock” conducted a second private online chat during which “caspercock” said his name was Tim Lofthouse. Agent Waters subsequently determined that Tim Lofthouse was a known alias for Wales. Two days later, on December 17, 2002, Agent Waters and “caspercock” had a third online chat in which the agent, as “angelgirll2yo,” indicated she would be at a shopping mall in Casper in the near futurе and would like to give “caspercock” the pictures she had taken of herself. “Caspercock” indicated that he would have to work and would be unable to meet “angelgirll2yo.” “Caspercock” stated that he “[is] interested in seeing them pictures, and being friends with you,” and that “[i]f [he] didn‘t have to work [he‘d] come up there and pick [the pictures] up.” Id. at 14-15. That was the last online conversation between Agent Waters and “caspercock” or “sassyangelgoddess.”
A state arrest warrant was issued for Wales, although Agent Waters did not know where Wales lived and was therefore unable to arrest him.1 On July 1, 2003, Agent Waters received a phone call from Wyoming probation agent Aaron Fortin, who was supervising Wales’ probation following his guilty plea to third degree sexual assault in violation of Wyоming state law, and had learned that Waters was looking for Wales. Fortin told Waters that Wales had admitted using a computer at the public library to access the Internet. Waters then arrested Wales in Casper. Wales admitted he had looked at images of child pornography on the Internet because they aroused him, that he “sometimes” masturbated while viewing the images, and that he used the Yаhoo profiles “caspercock,” “caspercock 2002” and “sassyangelgoddess.” He further admitted that he would arrange to meet underage girls but
Wales waived his right to a jury trial, and the case was tried to the court on November 14, 2003. The government‘s sole witness was Agent Waters. Wales elected not to submit any evidence. Both the government and Wales filed written closing arguments to the court. Wales’ defense was that he had not taken the necessary “substantial step” to complete an attempt as was charged in the indictment. Wales also argued that he had abandoned his attempt.
The court found Wales guilty of both counts and issued its “Findings of Fact, Conclusions of Law and Order” (hereinafter “Order“). The court found that the government had еstablished beyond a reasonable doubt that Wales had violated
DISCUSSION
As indicated, Wales was convicted of attempted child sexual exploitation, in violation of
After carefully reviewing the record, we conclude that there was ample evidence that Wales took a substantial step towards commission of the substantive offenses of sexual exploitation of a child and enticing a minor to engage in illegal sexual activity. As we have stated previously;
The “substantial step” required to establish an attempt must be something beyond mere preparation. It must be an act adapted to, approximating, and which in the ordinary аnd likely course of things will result in, the commission of the particular crime. A substantial step is an appreciable fragment of a crime and an action of such substantiality that, unless frustrated, the crime would have occurred. The step must be strongly corroborative of the firmness of the defendant‘s criminal intent and must unequivocally mark the defendant‘s acts as criminal. It should evidence commitment to the criminal venture.
Id. (quoting United States v. Smith, 264 F.3d 1012, 1016 (10th Cir.2001)).
We agree with the government that Wales violated
Believing that he was communicating with a twelve year old female, the defendant made use of female persona to influence the target and answer any concerns. He exhibited his genitalia by means of the web camera as part of the process to overcome any resistance to participation in an unlawful and explicit sexual display by the young target. Although the creation of the chat personas for caspercock and sassyangelgoddess are arguably preparation, the dеfendant went further and employed them in the context of seeking to influence conduct on the part of another person. He sent pornographic images ... to demonstrate to angelgirll2yo the poses that he wanted from her. This constitutes more than mere preparation, but represents criminal conduct with the target.
Order at 16.
Additionally, Wales first brought up the subject of pictures, sent to “angelgirll2yo”
There is accordingly sufficient evidence to uphold Wales’ conviction under
Wales next argues that, even assuming he had taken substantial steps and therefore completed the crimes of attempting to violate
The district court found that, even assuming thе defense was applicable, Wales failed to demonstrate that he had in fact abandoned or renunciated his criminal purpose. The record amply supports the district court‘s factual findings. Although communications ceased between Wales and “angelgirll2yo,” Wales’ last online conversations do not indicate a complete abandonment and renunciation. Rathеr, they suggest a continued interest in the pictures he believed had been taken, as well as a continued desire to “be friends.” Further, as the district court found, Wales’ evident reluctance to actually meet “angelgirll2yo” is equally suggestive of a fear that he would be caught as of a renunciation of his criminal purpose. Wales has failed to demonstrate that his conduct reveals comрlete and voluntary abandonment.
For the foregoing reasons, Wales’ conviction is AFFIRMED.
Notes
(a) Any person who ... persuades, induces, entices ... any minor to engage in ... any sexually explicit conduct for the purpose of producing any visual depiction of such conduct, shall be punished ... if such person knows or has reason to know that such visual depiction will be transported in interstate or foreign commerce or mailed, if that visual depiction was produced using materials that have been mailed, shipped, or transportеd in interstate or foreign commerce by any means, including by computer....
(d) Any individual who violates, or attempts or conspires to violate, this section shall be ... imprisoned....
(b) Whoever, using the mail or any facility or means of interstate or foreign commerce ... knowingly persuades, induces, entices ... any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be ... imprisoned....