US v. William Clarke

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:14-cr-00246-CMH-1. [999970741]. [15-4299]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4299

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
WILLIAM ANDREW CLARKE,
Defendant – Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Claude M. Hilton, Senior
District Judge. (1:14−cr−00246−CMH−1)
Argued:

September 23, 2016

Decided:

November 18, 2016

Before NIEMEYER, MOTZ, and WYNN, Circuit Judges.

Affirmed by published opinion. Judge Wynn wrote the opinion, in
which Judge Niemeyer and Judge Motz joined.

ARGUED: Joseph Douglas King, KING, CAMPBELL, PORETZ & THOMAS
PLLC, Alexandria, Virginia, for Appellant.
Christopher John
Catizone, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee. ON BRIEF: Dana J. Boente, United States
Attorney, Scott Andrew Claffee, Special Assistant United States
Attorney, William Carlson, Special Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.

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WYNN, Circuit Judge:
A federal jury convicted Defendant William Andrew Clarke of
one count of attempting to persuade minors to engage in unlawful
sexual activity, in violation of 18 U.S.C. § 2422(b), and the
district court sentenced Defendant to 120 months imprisonment
and lifetime supervised release.
On appeal, Defendant argues that the district court erred
in

denying

inventory

his

and

motion

warrant

to

suppress

search

of

evidence

his

obtained

vehicle.

in

Defendant

an

also

argues that the district court reversibly violated Federal Rule
of Criminal Procedure 30(b) by refusing to provide counsel with
key jury instructions before closing argument and failing to
properly

instruct

the

jury

regarding

the

charged

offense.

Finally, Defendant maintains that the government did not produce
evidence

sufficient

to

support

his

conviction.

Finding

no

reversible error, we affirm.
I.
While

engaged

in

undercover

child

exploitation

investigative work in early October 2013, Department of Homeland
Security Special Agent Kevin J. Laws encountered Defendant on
Family Intimacy, a social networking website centered on incest.
Defendant’s Family Intimacy profile listed his experience with
incest, individuals he wanted to engage in incest with, and—most

pertinent

to

Agent

Laws’

2

investigation—-his

desire

to

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engage in incest with minors.

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Going by the alias “Jaye,” Agent

Laws sent Defendant a friend request, which Defendant accepted.
Defendant then messaged Agent Laws, stating that he was glad
Agent Laws had reached out and noting that they lived near each
other.
Agent

Agent Laws messaged Defendant back, providing him with
Laws’

undercover

email

address

so

that

they

could

communicate outside of the website.
On October 10, 2013, Defendant emailed Agent Laws and asked
whether

Agent

Laws

had

experience

with

incest.

Agent

Laws,

posing as the single father of two fictitious children, nineyear-old

Amy

and

eight-year-old

Mark,

replied

that

he

had

molested his daughter since she was four years old.
As their conversation progressed, Defendant said that he
had

been

looking

for

“likeminded”

men

close

by.

J.A.

253.

Agent Laws then mentioned that although he “[did not] really
play with” Mark, Mark had helped him masturbate a few times.
J.A. 98, 254.
to meet.”

Defendant responded: “OMG you have a son! We need

J.A. 98, 254.

Soon thereafter, Agent Laws invited Defendant over to his
house

for

the

weekend,

asking

whether

Defendant

would

be

comfortable with Agent Laws watching Amy and Mark perform sex
acts on Defendant.

Defendant replied that “a get together would

be awesome,” and agreed to come over that weekend.

3

J.A. 255.

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Agent Laws and Defendant then moved their discussions to an
online

messaging

service.

There,

Defendant

into the children’s sexual experience.

further

inquired

In particular, Defendant

asked Agent Laws how he introduced the children to incest, if
Agent Laws had ever “shared” the children before, and if Mark
and

Amy

had

ever

engaged

in

any

sex

acts

with

each

other.

Defendant questioned Agent Laws about Mark specifically, asking
how

it

came

about

that

Mark

helped

Agent

Laws

masturbate,

whether Mark masturbated, and whether Mark could get an erection
and orgasm.

Agent Laws said that he was more interested in Amy

than Mark, to which Defendant replied, “[W]ell [Mark] needs me
around LOL.”

J.A. 265.

“also play with Amy.”
course.”

Agent Laws asked Defendant if he would
J.A. 266.

Defendant responded, “[O]f

J.A. 266.

Agent Laws eventually suggested that he and Defendant meet
at

a

restaurant

near

Agent

Laws’

house.

Agent

Laws

and

Defendant then spoke over the phone to discuss their plans for
meeting and having sex with the children.

Defendant asked Agent

Laws what he had told the children about Defendant’s upcoming
visit.

Agent Laws suggested he tell the children that “Uncle

Bob’s coming over.”

J.A. 110.

Defendant said that it would be

“easier” if Agent Laws referred to him by his real name--“Andy”-when

talking

with

the

children

because

that

interactions with the children “more natural.”

4

would

make

J.A. 110.

his
Per

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Defendant’s instruction, Agent Laws reported that he told Mark
and Amy that his “good friend Andy” would be coming to their
house to engage in sex acts.

J.A. 117, 272.

During their call,

Defendant also asked Agent Laws if he thought the children would
talk to him over the phone and if the children were excited
about meeting someone else.

Agent Laws and Defendant agreed

that they would meet the next day, October 11, 2013.
On the morning of their planned meeting, Agent Laws and
Defendant discussed Defendant’s upcoming visit once more over a
video call.

During their call, Defendant asked Agent Laws “if

it was okay if [Defendant] performed oral sex on Mark and Mark
performed

oral

sex

on

[Defendant],

performed oral sex on Amy.”

and

also

J.A. 116.

if

[Defendant]

Defendant also said

Agent Laws should “t[ake] the lead and t[ell] [Defendant] when
to join in.”
After
Agent

J.A. 116.

Agent

Laws

restaurant

and
at

Laws

and

a

cover

which

he

Defendant

ended

team

up

and

set

Defendant

their

video

surveillance
had

agreed

at
to

call,
the
meet.

Defendant arrived at the restaurant at approximately 1:50 P.M.
Upon approaching Agent Laws’ vehicle, Defendant was arrested and
interviewed.
While this interview was being conducted, Virginia State
Police

inventoried

Defendant’s

vehicle

was

subsequently towed to a Virginia State Police impound lot.

The

5

vehicle.

The

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government

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later

obtained

Defendant’s vehicle.

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and

executed

a

search

warrant

for

During their search of the vehicle, the

government discovered lubrication, condoms, a bag of candy, an
overnight bag, and a piece of paper listing Agent Laws’ phone
number and the ages of Agent Laws, Amy, and Mark.
On May 22, 2015, a jury found Defendant guilty of one count
of attempted coercion and enticement of a minor in violation of
18 U.S.C. § 2422(b).
120

months

The district court sentenced Defendant to

imprisonment

and

lifetime

supervised

release.

Defendant timely filed a notice of appeal.
On appeal, Defendant contends that the district court made
four reversible errors by: (1) improperly refusing to suppress
evidence

obtained

as

a

result

of

the

purportedly

unlawful

searches of Defendant’s vehicle; (2) violating Rule 30(b) of the
Federal

Rules

of

Criminal

Procedure

by

failing

to

inform

Defendant’s counsel of its jury instructions prior to closing
arguments; (3) improperly instructing the jury as to the meaning
of “induce” in 18 U.S.C. § 2422(b); and (4) improperly holding
that

the

government

produced

Defendant’s conviction.

sufficient

evidence

to

sustain

We disagree with all of Defendant’s

contentions.

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II.
A.
Defendant first asserts that the district court erred in
denying Defendant’s motion to suppress evidence obtained through
the

inventory

vehicle.
search

search

subsequent

warrant

search

of

his

In particular, Defendant argues that the inventory

violated

obtained

and

the

through

Fourth

the

Amendment

warrant

and

that

search--including

the

evidence

lubrication,

condoms, and a bag of candy--should be suppressed because law
enforcement officers secured the warrant based on information
obtained during the allegedly unconstitutional inventory search.
In

reviewing

a

district

court’s

ruling

on

a

motion

to

suppress, this Court “review[s] conclusions of law de novo and
underlying factual findings for clear error.”

United States v.

Banks, 482 F.3d 733, 738 (4th Cir. 2007) (internal quotation
marks omitted).

Because the district court denied Defendant’s

motion to suppress, “we construe the evidence in the light most
favorable to the government.”

United States v. Kelly, 592 F.3d

586, 589 (4th Cir. 2010).
“The Fourth Amendment generally requires police to secure a
warrant before conducting a search.”

United States v. Matthews,

591 F.3d 230, 234 (4th Cir. 2009) (quoting Maryland v. Dyson,
527 U.S. 465, 466 (1999)).

However, a warrantless search may be

valid if the search “‘falls within one of the narrow and well-

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delineated

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exceptions’

requirement.”

to

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the

Fourth

Amendment’s

warrant

United States v. Currence, 446 F.3d 554, 556 (4th

Cir. 2006) (quoting Flippo v. West Virginia, 528 U.S. 11, 13
(1999)).

It is well settled that an inventory search is one

such exception.
search

Matthews, 591 F.3d at 234.

exception

to

apply,

the

search

“For the inventory

must

have

‘be[en]

[1]

conducted according to standardized criteria,’ such as a uniform
police department policy, and [2] performed in good faith.”
at

235

(first

alteration

in

original)

(citations

Id.

omitted)

(quoting Colorado v. Bertine, 479 U.S. 367, 374 n.6 (1987)).
Defendant

argues

that

the

government

failed

to

produce

evidence sufficient to allow the district court to find that the
inventory

search

criteria.

The

was

conducted

government

pursuant

may

prove

to
the

standardized
existence

of

standardized criteria “by reference to either written rules and
regulations
(emphasis
justify

or

testimony

added)
a

regarding

(internal

warrantless

standard

quotation

search,

practices.”

Id.

omitted).

“To

marks

standardized

criteria

must

sufficiently limit a searching officer’s discretion to prevent
his search from becoming ‘a ruse for a general rummaging in
order

to

discover

incriminating

evidence.’”

Id.

(quoting

Florida v. Wells, 495 U.S. 1, 4 (1990)).
Here,
district

in
court

ruling

on

considered

Defendant’s
the

motion

Virginia

8

to

suppress,

Department

of

the

State

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Police’s

inventory

“Vehicle

Impoundment

enforcement

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search

officers

policy,

and

Inventory,”

conducted

the

General

Order

pursuant

search,

OPR

to

and

6.01

which

the

law

standard

inventory search form signed by the law enforcement officer who
conducted the inventory search of Defendant’s vehicle, which was
completed in accordance with the inventory search policy.

The

district court did not clearly err in finding that this evidence
was

sufficient

to

establish

that

the

inventory

search

was

conducted pursuant to standardized criteria, particularly since
Defendant does not argue that the Virginia policy did not comply
with

the

Fourth

Amendment.

Accordingly,

the

district

court

properly denied Defendant’s motion to suppress.
B.
Second, Defendant contends that the district court violated
Rule 30(b) of the Federal Rules of Criminal Procedure by failing
to apprise Defendant’s counsel of how it would instruct the jury
before closing arguments, and that the violation resulted in
actual prejudice warranting reversal of Defendant’s conviction.
Rule

30(b)

of

the

Federal

Rules

of

Criminal

Procedure

requires that a trial court “inform the parties before closing
arguments

how

instructions.”

it

intends

to

rule

on

Fed. R. Crim. P. 30(b).

least two purposes.

the

requested

[jury]

Rule 30(b) serves at

First, by “inform[ing] trial lawyers in a

fair way what the instructions are going to be,” Rule 30(b)

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“allow[s]

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counsel

the

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opportunity

intelligently to the jury.”

to

argue

the

case

United States v. Horton, 921 F.2d

540, 547 (4th Cir. 1990) (internal quotation marks omitted).
Second, by informing counsel of instructions prior to closing
argument, Rule 30(b) allows counsel to lodge objections so as to
preserve errors for appeal and “aid the court in giving a proper
charge in the first instance.”
F.2d

790,

794

(10th

Cir.

United States v. Guadalupe, 979

1992)

(stating

that

Rule

30(b)

contemplates the trial court “deliver[ing] a final copy of the
charge

to

counsel

and

before

instructing

permit[ting]

the

jury

them

whether

to

the

raise
charge

objections
is

to

be

delivered prior to or following closing arguments”).
Here,

Defendant

submitted

to

the

court

the

following

proposed instruction regarding the requisite mens rea for the
indicted

offense--attempted

enticement

of

a

minor:

“The

government must prove that the defendant intended to transform
or overcome the will of an individual . . . .

Proof that the

defendant merely believed that he was communicating with someone
who could arrange an opportunity for him to engage in sexual
activity . . . is insufficient for a conviction.”

J.A. 51.

By

contrast, the government asked the court to instruct the jury
that

the

government

must

prove

“[f]irst,

that

the

defendant

intended to commit the crime of coercion or enticement of a
minor

to

engage

in

sexual

activity;

10

and

second,

that

the

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defendant did an act constituting a substantial step towards the
commission of that crime.”

J.A. 49.

At the close of evidence, the court told the parties that
it would first instruct the jury and then give the parties an
opportunity to object at the end of instructions.

Defendant’s

counsel asked the court if it would be using any instructions
proposed by either party, stating that Defendant objected to
several of the government’s proposed instructions, particularly
with regard to attempt.

The court responded: “Sometimes I do

and sometimes I don’t.”

J.A. 186.

requested

district

a

copy

of

the

Defendant’s counsel then

court’s

instructions.

The

court refused the request, stating, “You’ll be able to listen
and you can object when I’m finished.”
also

refused

to

recite

its

presenting them to the jury.

J.A. 186-87.

instructions

to

The court

counsel

before

Ultimately, the court did not give

the instruction Defendant requested; instead, it instructed the
jury that “[t]he terms persuade, induce, and entice should be
given their ordinary meaning.

In ordinary usage, the words are

effectively synonymous, and the idea conveyed is of one person
leading or moving another by persuasion or influence as to some
action or state of mind.”

J.A. 217.

By refusing to provide its instructions to counsel before
closing arguments, we must hold that the district court violated
Rule 30(b).

This violation placed Defendant’s counsel in the

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difficult

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knowing

position
how

the

Additionally,

of

having

court

the

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to

would

argue

to

ultimately

violation

deprived

the

jury

instruct

the

without

the

parties

jury.

of

the

opportunity to lodge objections to the proposed instructions and
thereby give the court the opportunity to correct any errors
before instructing the jury.
Nevertheless,

although

the

district

court

violated

Rule

30(b), we may reverse only if Defendant demonstrates that the
violation

resulted

in

actual

prejudice.

United

States

v.

Squillacote, 221 F.3d 542, 572 (4th Cir. 2000); United States v.
Burgess, 691 F.2d 1146, 1156 (4th Cir. 1982).

We have not yet

had the occasion to consider what constitutes prejudice when a
district court violates Rule 30(b) by failing to provide counsel
with jury instructions before closing arguments.
Court’s

decision

in

Horton--which

dealt

However, this

with

the

related

question of whether a district court reversibly erred by failing
to give counsel additional time for argument after the court
provided a supplemental instruction--is instructive.

In Horton,

we found that the defendant was not prejudiced by the trial
court’s

error

in

allowing

the

parties

only

three

minutes

of

additional argument after providing the jury with a supplemental
instruction

the

arguments

essential to his case . . . in his initial closing.”

921 F.2d

at

original

547-48

because

(finding

“defense

“the

counsel

factual

12

made

predicates

all

of

[the

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charge and new charge] so similar that the arguments to be made
against guilt are essentially the same under both theories”).
Like

in

Horton,

Defendant

fails

to

demonstrate

actual

prejudice because the district court’s error did not inhibit
Defendant’s counsel from making his “essential” argument to the
jury--that

“the

government

ha[d]

to

prove

that

[Defendant]

intended . . . to transform the will on the part of the minor.”
J.A. 205.

Defendant’s counsel further explained to the jury

that an intent to “arrang[e] to have sex” did not satisfy this
requirement.

J.A.

instructions

proposed

notwithstanding

205.

the

These
by

district

two

statements

Defendant.
court’s

reflected

Importantly,

failure

to

notify

the
and
the

parties of its instructions, the instruction ultimately given by
the district court reflected both governing law and the argument
made by Defendant’s counsel--that the government had to prove
that

Defendant

intended

to

“lead[]

or

mov[e]

persuasion or influence” to engage in sex.
Part II.C.
evidence

[a

minor]

by

J.A. 217; see infra

Additionally, the government introduced sufficient

from

which

a

jury

could

conclude

that

Defendant

intended to persuade Mark and Amy to engage in sex acts, not
just arrange sex acts.

See infra Part II.D.

Because Defendant’s counsel was able to make “all arguments
essential to his case,” because those arguments reflected the
instructions ultimately provided by the court, and because the

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government introduced sufficient evidence to convict Defendant
under the correct legal standard, we conclude that the district
court’s violation of Rule 30(b) did not prejudice Defendant.
C.
Defendant next argues that the district court erroneously
instructed the jury on the definition of “induce” under Section
2422(b).

This Court “review[s] de novo the claim that a jury

instruction

failed

to

correctly

state

the

applicable

law.”

United States v. Jefferson, 674 F.3d 332, 351 (4th Cir. 2012).
“In

conducting

such

a

review,

we

do

not

view

a

single

instruction in isolation; rather we consider whether taken as a
whole and in the context of the entire charge, the instructions
accurately and fairly state the controlling law.”

Id. (internal

quotation marks omitted).
A

person

violates

Section

2422(b)

if

he

“knowingly

persuades, induces, entices, or coerces” a minor to engage in
unlawful

sexual

§ 2422(b).

activity,

Although

or

the

attempts
terms

to

do

“persuade,”

so.

18

U.S.C.

“induce,”

and

“entice” are not statutorily defined, we have found that they
are

“words

of

common

ordinary meaning.”

usage”

and

have

“accord[ed]

them

their

United States v. Engle, 676 F.3d 405, 411

n.3 (4th Cir. 2012).

Moreover, these terms are “effectively

synonymous,” conveying the idea “of one person leading or moving
another by persuasion or influence, as to some action [or] state

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mind.”

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Id.

(alteration

marks omitted).

Pg: 15 of 20

in

original)

(internal

quotation

Our interpretation of these terms accords with

the statute’s intent to “criminalize[] an intentional attempt to
achieve a mental state--a minor’s assent.”

Id. at 419 (emphasis

omitted) (internal quotation marks omitted).
Defendant
properly

contends

instruct

“arranging”

or

the

that
jury

the

district

because

“causing”—-one

it

did

definition

court
not

of

failed

clarify

to
that

“induce”—-sexual

activity with a minor was insufficient to support a conviction
under Section 2422(b).

Thus, Defendant argues, the district

court “impermissibly broadened the definition of the requisite
intent

and

evidence.”

allowed

for

a

conviction

Appellant’s Br. at 28.

based

on

insufficient

We disagree.

In instructing the jury, the district court explained that
“[t]he terms persuade, induce, and entice should be given their
ordinary meaning.

In ordinary usage, the words are effectively

synonymous, and the idea conveyed is of one person leading or
moving another by persuasion or influence as to some action or
state of mind.”
almost

verbatim.

J.A. 217.
See

Engle,

These instructions mirror Engle
676

F.3d

at

411

n.3.

And,

by

emphasizing that the jury must find that Defendant “le[d] or
mov[ed] [a minor] by persuasion or influence” to engage in sex
acts, the district court’s jury instructions required the jury
to find that Defendant made “an effort to alter [a minor’s]

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mental state,” rather than “merely convey[ing] the notion of
‘causation,’” as Defendant suggests.
Accordingly,

we

hold

that

the

Appellant’s Br. at 26.

district

court’s

instruction

fairly and accurately reflected the applicable law.
D.
Finally, Defendant argues that the district court erred in
denying

his

maintains
evidence

motion

that
that

the

for

acquittal.

government

Defendant

In

failed

attempted

to

particular,
to

produce

persuade,

Defendant
sufficient

directly

or

indirectly, a minor to engage in sex acts.
“We review de novo a district court’s denial of a motion
for judgment of acquittal pursuant to Rule 29 of the Federal
Rules of Criminal Procedure.”
360, 367 (4th Cir. 2010).
challenge

bears

a

United States v. Green, 599 F.3d

A defendant who brings a sufficiency

heavy

burden,

United

States

v.

Palomino-

Coronado, 805 F.3d 127, 130 (4th Cir. 2015), as “[a]ppellate
reversal on grounds of insufficient evidence . . . [is] confined
to cases where the prosecution’s failure is clear,” Green, 599
F.3d at 367 (quoting Burks v. United States, 437 U.S. 1, 17
(1978)) (internal quotation marks omitted).

“This Court must

uphold a jury’s verdict ‘if there is substantial evidence in the
record to support it.’”

United States v. Bailey, 819 F.3d 92,

95 (4th Cir. 2016) (quoting United States v. Wilson, 198 F.3d
467, 470 (4th Cir. 1999)).

“In determining whether the evidence

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in the record is substantial, we view the evidence in the light
most favorable to the government and inquire whether there is
evidence

that

adequate

and

defendant’s

a

reasonable

sufficient

guilt

beyond

finder

to
a

of

support
reasonable

fact
a

could

accept

conclusion
doubt.”

of

Id.

as

[the]

(quoting

Wilson, 198 F.3d at 470) (internal quotation marks omitted).
A

person

violates

Section 2422(b)

if

he

“knowingly

persuades, induces, entices, or coerces any individual who has
not attained the age of 18 years, to engage in . . . any sexual
activity for which any person can be charged with a criminal
offense, or attempts to do so.”

18 U.S.C. § 2422(b).

To obtain

a conviction under this provision, “the government must prove
that the defendant: (1) used a facility of interstate commerce;
(2) to knowingly entice or attempt to entice any person under
the

age

of

18;

(3) to

engage

Engle, 676 F.3d at 411–12.

in

illegal

sexual

activity.”

If the defendant is charged with

attempt, “the government must prove beyond a reasonable doubt,
that (1) he had culpable intent to commit the crime and (2) he
took a substantial step towards completion of the crime that
strongly

corroborates

that

intent.”

Id.

at

419-420.

preparation is insufficient to establish intent.

Mere

See id. at

423.
Defendant’s sufficiency challenge requires us to determine
in what circumstances, if any, a defendant can violate Section

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2422(b) without communicating directly with a minor but instead
communicating

indirectly

through

an

adult

intermediary--a

question that this Court has not yet had occasion to address.
In enacting Section 2422(b), Congress intended “to criminalize
persuasion

and

the

attempt

to

persuade,

performance of the sexual acts themselves.”

not

[just]

the

Id. at 419; see

also United States v. McMillan, 744 F.3d 1033, 1036 (7th Cir.
2014) (“[T]he essence of [the act Section 2422(b) contemplates]
is attempting to obtain the minor’s assent.”).
“One particularly effective way to persuade or entice a
person

to

do

something

is

to

enlist

the

help

of

a

trusted

relative, friend, or associate.”

McMillan, 744 F.3d at 1036.

To

can

that

end,

particularly

sexual

parents,

predators
guardians,

or

and

do

others

in

use

adults--

positions

of

influence or power--to attempt to persuade minors to engage in
sexual activity.
159,

161-62

Circuits

(3d

have

See id.; United States v. Nestor, 574 F.3d
Cir.

2009).

uniformly

For

concluded

this

reason,

that

our

Section

Sister
2422(b)

“extend[s] to adult-to-adult communications that are designed to
persuade the minor to commit the forbidden acts.”
F.3d at 1035 (collecting cases).

McMillan, 744

We agree and therefore hold

that “communications with an intermediary aimed at persuading,
inducing,

enticing,

or

coercing

a

minor

to

engage

in

sexual

activity fit within [the] common understanding of a criminal

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attempt that is prohibited by [Section] 2422(b).”

United States

v. Roman, 795 F.3d 511, 517 (6th Cir. 2015) (first alteration in
original) (internal quotation marks omitted).
Defendant
intermediaries
evidence

is

persuade

Mark

argues
can

that

violate

insufficient
and

even

Amy

to

if

communications

Section

to

establish

engage

indirectly through Agent Laws.

2422(b),

in

that
sex

the
he

with

adult

government’s
attempted

to

directly

or

acts,

We disagree.

The government introduced multiple pieces of evidence that,
taken together, would allow a reasonable juror to conclude that
Defendant intended to persuade, induce, entice, or coerce minors
to engage in sex acts and took substantial steps toward doing
so.
First,

Defendant

directed

Agent

Laws

to

use

Defendant’s

name when talking to the children about his upcoming visit so
that Defendant’s interaction with the children would be “more
natural.”

J.A. 110.

Accordingly, a reasonable factfinder could

conclude that Defendant “attempt[ed] to use [Agent Laws] as an
intermediary to convey [a] message to the child[ren]”--a message
aimed

at

persuading

the

children

to

engage

in

sex

acts.

McMillan, 744 F.3d at 1036. Second, Defendant asked to speak
directly to the children over the phone.

Third, Defendant asked

Agent Laws--an individual Defendant reasonably believed was in a
position

to

influence

and

control

19

Mark

and

Amy--if

he

could

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engage

in

Filed: 11/18/2016

acts

with

Agent

telling

sex

Laws

he

[Defendant]

when

to

both

Pg: 20 of 20

of

should

join

the

children.

“t[ake]

in,”

the

Defendant

Indeed,

lead

and

expressly

by

t[ell]

relied

on

Agent Laws’ position of influence with Mark and Amy to convince
the children to engage in sex acts.

J.A. 116.

The government not only produced evidence that Defendant
attempted to entice Mark and Amy indirectly through Agent Laws,
but

also

produced

evidence

that

would

allow

a

reasonable

factfinder to conclude that Defendant took a substantial step
towards directly enticing the minors to engage in sex acts.

In

particular, Defendant brought candy to what he believed was a
weekend visit with Mark and Amy, during which Defendant hoped
the children would engage in sex acts.
have

concluded

entice

Mark

that

and

Amy

Defendant
to

A reasonable jury could

intended

engage

in

sex

to

use

acts.

the

candy

Because

to
the

government produced sufficient evidence that Defendant intended
to persuade minors to engage in sex acts and took substantial
steps towards doing so, we hold that the district court did not
err in denying Defendant’s motion for a judgment of acquittal.
III.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.

20