Criminal Practice – Venue – Sexual Exploitation of a Minor – Internet Communication – Traveling to Meet Victims

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U.S. v. Engle (Lawyers Weekly No. 001-057-12, 31 pp.) (Shedd, J.) No. 10-4850, Feb. 29, 2012; USDC at Norfolk, Va. (Doumar, J.) 4^th Cir. Full-text opinion.

Holding: A defendant who separately met 13- and 17-year-old girls on the Internet and traveled to meet them and have sexual relations with them, including making a video of his sexual encounter with the 17-year-old, properly was prosecuted in Virginia for sexual exploitation of a minor, and the 4^th Circuit affirms that conviction and his convictions for attempted enticement of a minor and witness tampering.

The government alleged, in part, that on or about April 25-27, 2008, in the Eastern District of Virginia and elsewhere, defendant knowingly enticed A.M. to engage in sexually explicit conduct with him for the purpose of producing a visual depiction of that conduct. Based on these allegations, his pretrial motion to dismiss on venue grounds should have been denied.

We agree with the district court that venue is proper under the second paragraph of § 3237(a) because the charge against defendant is a “continuing offense.” In so holding, we find the 22th Circuit decision in U.S. v. Kapordelis, 569 F.3d 1291 (11^th Cir. 2009), to be persuasive.

Also, as a factual matter, we conclude that venue is also proper under the first

paragraph of  § 3237(a), which provides that any offense begun in one district and completed in another, or committed in more than one district, may be prosecuted in any district in which such offense was begun, continued or completed. Here, unquestionably much of the pre-recording activity prior to making the video occurred in Pennsylvania. However, viewing the evidence in the light most favorable to the government, we believe that a jury could reasonably find by a preponderance of the evidence that defendant’s sexually themed communications with A.M. and especially his sending naked pictures of himself to her, were part of his effort to “groom” her for that purpose, which is sufficient to establish enticement under 18 U.S.C. § 2251(a).

Because defendant conducted at least some of the charged activity from the Eastern District of Virginia, his claim of improper venue is without merit.

We also reject defendant’s claim that there was insufficient evidence to convict him of attempted enticement of a minor. His argument is limited to one element of the charged crimes. He contends his communications with the 13-year-old girl were “mere expressions of affection and sexual desire,” and that because he was incarcerated with no realistic probability of being released when he communicated with the girl, the evidence is insufficient to establish that he took a substantial step towards enticing her to engage in illegal sexual activity. We disagree.

In the communications at issue, defendant communicated with the victim and her mother in specific terms regarding his expected release from jail, his immediate plan to reunite with the girl and his desired living arrangement in their house. Defendant referenced his past sexual activity with the girl in graphic terms, and he unequivocally stated his intention to resume sexual activity with her as soon as he was released.

Finally, the district court did not deny defendant a meaningful opportunity for allocution under Rule 32, as he addressed the court, stating he wanted mental health treatment and he had made “some bad mistake” but was “not a bad person.”

Convictions affirmed.