Coercion And Enticement

ELEMENTS OF THE OFFENSE

1. The defendant used a facility or means of interstate commerce to (or attempt to) knowingly persuade, induce, entice, or coerce a person to engage in prostitution or sexual activity
2. The person was less than 18 years old
3. The defendant believed that the person was less than 18 years old
4. If the sexual activity had occurred, the defendant could have been charged with the criminal offense of (offense)

INTENT

The intent required by the statute is to persuade, induce, or entice someone believed to be a minor to engage in sexual activity. The government is not required to prove that the defendant themself intended to engage in sexual activity with the minor.^[1]

^[1] United States v. Berg, 640 F.3d 239 (7th Cir. 2011)

INTERSTATE/FOREIGN COMMERCE

See our Common Terms section here.

SEXUAL ACTIVITY

The statute only covers “sexual activity” that involves physical contact between two people.^[2]

The government is not required to prove that the defendant actually completed a sex act with the minor to support a conviction (even if the crime is not charged as an attempt).^[3] 18 U.S.C. § 2422(b) criminalizes persuasion/enticement/coercion, not the sexual act itself. The government therefore only needs to provide sufficient evidence that if the defendant had completed the sex act they attempted to induce, they would have violated the state’s statute criminalizing sexual activity with a minor.^[4]

^[2] United States v. Taylor, 640 F.3d 255 (7th Cir. 2011)

^[3] Eighth Circuit Jury Instructions, United States v. Bailey, 228 F.3d 637, 638–39 (6th Cir. 2000)

^[4] United States v. Wilkerson, 702 F. App’x 843 (11th Cir. 2017)

PERSUADE/INDUCE/ENTICE/COERCE

The Seventh Circuit ruled that the statute extended to communication between two adults that was designed to persuade a minor to commit forbidden acts.^[5]

The Seventh Circuit has not yet taken a position on whether the jury must unanimously agree on the manner of persuasion, inducement, enticement, or coercion.^[6]

It is not necessary for the government to prove that the minor was actually persuaded, induced, enticed, or coerced to engage in prostitution or sexual activity. However, it is necessary to prove that the defendant intended to engage in prostitution or unlawful sexual activity with the minor and knowingly acted toward bringing about said act.^[7]

Persuade, Induce, and Entice “convey the idea of one person leading or moving another by persuasion or influence, as to action or state of mind.”^[8]

^[5] United States v. McMillan, 744 F.3d 1033 (7th Cir. 2014)

^[6] Seventh Circuit Jury Instructions

^[7] Eighth Circuit Jury Instructions

^[8] Engle, 676 F.3d at 411 n.3

EVIDENCE

In solicitation cases involving the Internet, evidence from text messages and other online messaging platforms is crucial. It is important not to copy and paste material from transcripts, as important information is lost in the copy and the evidence is no longer legally accurate. For example, specific emojis may not be accurately copied or conveyed.

If transcripts are not being used for the truth of the statements, digital evidence and chat room logs are not typically considered hearsay.

In order to enter computer records into evidence, they must be authenticated under Federal Rule of Evidence 901.[9] Electronic records should be treated as any traditional form of evidence, and best evidence rules apply.

Authorship and authenticity of computer records can generally be proven by circumstantial evidence. For example, a defendant in the Tenth Circuit argued that chat log evidence should be excluded because the government “could not identify that the statements attributed to [him] were in his handwriting, his writing style, or his voice,” but the user who sent the messages identified himself with the defendant’s name, gave an address that matched the defendant’s, and records in the defendant’s home matched information sent to the user.[10] Thus, there was sufficient evidence that the defendant sent the messages, and the evidence was authenticated. The Ninth Circuit concurred. However, the Seventh Circuit has excluded web postings on authentication grounds absent evidence that they were posted by the purported users.[11]

It could be argued that each email in a chain (a series of emails) constitutes a separate communication which is therefore subject to separate authentication requirements.

Text messages are difficult to authenticate because service providers typically do not maintain sufficient records. However, they could be authenticated through information about the collection of the evidence, proving who sent the messages, witnesses’ personal knowledge, and circumstantial evidence.

[9] United States v. Simpson, 152 F.3d 1241, 1250 (10th Cir. 1998); Fed. R. Evid. 901

[10] United States v. Simpson, 152 F.3d 1241 (10th Cir. 1998)

[11] United States v. Tank, 200 F.3d 627, 630-31 (9th Cir. 2000)

PROSTITUTION

“Prostitution” has been defined as “knowingly engaging in or offering to engage in a sexual act in exchange for money or other valuable consideration.”^[12]

^[12] Seventh Circuit Jury Instructions

ATTEMPT

Attempting to persuade, induce, or entice a minor to engage in a sexual act is criminalized under the statute.^[13]

^[13] U.S. v. Cote, 504 F.3d 682 (7th Cir. 2007)

SUBSTANTIAL STEP

In general, attempt requires the specific intent to commit a crime and a substantial step toward the commission of that crime.^[14] When Congress uses a legal term such as “attempt,” the courts generally apply that accepted definition.

A substantial step is “more than mere preparation, yet may be less than the last act necessary before the actual commission of the substantive crime.”^[15] The line between preparation and attempt is not always clear, requiring such determinations to be fact-specific.^[16] It is not necessary for a substantial step to be the “last act” necessary before the completion of the crime, but rather must “strongly corroborate” a defendant’s intent to commit the offense.^[17] Mere intent is not punishable as an attempt “unless it is also accompanied by significant conduct.”^[18]

For example, the Tenth Circuit found that a defendant who traveled to a prearranged meeting under the impression that he was meeting a 13-year-old girl with a firearm took a substantial step toward completion of his attempt offense.^[19]

^[14] United States v. Johnson, 376 F.3d 689, 693 (7th Cir. 2004); United States v. McLamb, 985 F.2d 1284, 1291 (4th Cir. 1993); United States v. Washington, 106 F.3d 983, 1004 (D.C. Cir. 1997); United States v. Munro, 394 F.3d 865, 869 (10th Cir. 2005)

^[15] United States v. Martinez, 775 F.2d 31, 35 (2d Cir. 1985); United States v. Nelson, 66 F.3d 1036, 1042 (9th Cir. 1995)

^[16] United States v. Coplon, 185 F.2d 629, 632 (2d Cir. 1950); United States v. Gaines, 969 F.2d 692, 697 (8th Cir. 1992)

^[17] United States v. Mims, 812 F.2d 1068, 1077 (8th Cir. 1987); United States v. DeMarce, 564 F.3d 989, 998 (8th Cir. 2009)

^[18] United States v. Resendiz-Ponce, 549 U.S. 102, 127 S. Ct. 782, 166 L. Ed. 2d 591 (2007)

^[19] United States v. Munro, 394 F.3d 865 (10th Cir. 2005)

SENTENCING

Mandatory Minimums and Maximums

18 U.S.C. Section 2422:

• Minimum: 10 years
• Maximum: Not specified

Ex Post Facto

A defendant sentenced to the mandatory minimum prescribed by the PROTECT Act where there was a possibility that the jury convicted based solely on pre-PROTECT Act conduct resulted in an ex post facto violation.^[20]

Excessive Sentences

The ten-year statutory minimum for persuading, inducing, enticing, or coercing a minor to engage in prostitution or any criminal sexual activity was not categorically disproportionate and therefore does not violate the Eighth Amendment.^[21]

^[20] United States v. Tykarsky, 446 F.3d 458 (3d Cir. 2006)

^[21] United States v. Shill, 740 F.3d 1347 (9th Cir. 2014); United States v. Brucker, 646 F.3d 1012 (7th Cir. 2011)