United States v. Brooks ( 2005 )


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  •                           UNITED STATES, Appellee
    v.
    Justin L. Brooks, Specialist
    U.S. Army, Appellant
    No. 04-0348
    Crim. App. No. 20000901
    United States Court of Appeals for the Armed Forces
    Argued November 9, 2004
    Decided March 31, 2005
    CRAWFORD, J., delivered the opinion of the Court, in which
    GIERKE, C.J., EFFRON, BAKER, and ERDMANN, JJ., joined.
    Counsel
    For Appellant: Captain Michael L. Kanabrocki (argued); Colonel
    Robert D. Teetsel, Lieutenant Colonel Mark Tellitocci, and Major
    Sean S. Park (on brief); Colonel Mark Cremin and Major Allyson
    Grace Lambert.
    For Appellee: Captain Michael C. Friess (argued); Colonel Steven
    T. Salata, Lieutenant Colonel Mark L. Johnson, and Major Natalie
    A. Kolb (on brief); Captain Janine P. Felsman.
    Military Judges: Patrick J. Parrish (arraignment) and Gary V.
    Casida (trial)
    THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
    United States v. Brooks, No. 04-0348/AR
    Judge CRAWFORD delivered the opinion of the Court.
    Contrary to his pleas, Appellant was convicted by a
    military judge sitting as a general court-martial of attempting
    to commit the offense of carnal knowledge with a child under the
    age of twelve and wrongfully soliciting an individual under the
    age of eighteen to engage in a criminal sexual act in violation
    of Articles 80 and 134, Uniform Code of Military Justice (UCMJ),
    
    10 U.S.C. §§ 880
     and 934 (2000), respectively.1   The convening
    authority approved the sentence of a bad-conduct discharge, ten
    months of confinement, forfeiture of all pay and allowances, and
    reduction to the lowest enlisted grade.   The United States Army
    Court of Criminal Appeals affirmed the findings and the
    sentence.   We granted review of the following issue:
    WHETHER APPELLANT’S CONVICTION FOR ATTEMPTING TO
    PERSUADE AN INDIVIDUAL UNDER THE AGE OF EIGHTEEN YEARS
    TO ENGAGE IN AN ACT OF CRIMINAL SEXUAL MISCONDUCT
    (SPECIFICATION 2 OF CHARGE I) IS SUPPORTED BY LEGALLY
    SUFFICIENT EVIDENCE WHERE THERE IS NO EVIDENCE THAT
    ANY PERSON UNDER EIGHTEEN YEARS OF AGE, OR A PERSON
    PRETENDING TO BE UNDER EIGHTEEN YEARS OF AGE, WAS EVER
    PERSUADED, INDUCED, ENTICED, OR COERCED TO ENGAGE IN
    AN ACT OF CRIMINAL SEXUAL MISCONDUCT.
    FACTS
    In December 1999 or January 2000, Appellant initiated an
    e-mail and “instant message” correspondence with a Mrs. N of
    Colorado, whom he met online in a chat room.   Appellant and Mrs.
    1
    The charged violation of 
    18 U.S.C. § 2422
    (b) was incorporated
    into the UCMJ under Article 134.
    2
    United States v. Brooks, No. 04-0348/AR
    N used the usernames “Jobthriller” and “SugarNspice510,”
    respectively.   Conversations that began as “just regular talk”
    gradually became sexual in nature, and ultimately centered on
    Appellant’s desire to have sex with very young girls.    On March
    29, 2000, Mrs. N suggested, falsely, that she had an eight-year-
    old neighbor with whom Appellant could have sex.   Appellant
    responded that he would prefer “a 6 yr old girl but 8 is fine.”
    After this exchange, Mrs. N contacted the local police and
    the Army Criminal Investigation Command (CID) at Fort Carson,
    Colorado.    Mrs. N contacted CID through her husband, who worked
    at Fort Carson.   She told her husband that Appellant “wanted to
    buy [her sister] for sex,” and that she would “love to see him
    brought up on charges for every kid he has ever hurt.”   Mrs. N
    later testified that Appellant had not in fact offered to “buy”
    her sister.
    CID Special Agent Vanderkooy set up a sting operation in
    which Mrs. N was to lure Appellant to a prearranged location
    where he would be arrested.    Under CID’s guidance, Mrs. N e-
    mailed Appellant to suggest they meet for sex while her husband
    was away.    Appellant agreed, and asked Mrs. N to bring “that 8yr
    [sic] old girl[.]”   Mrs. N promised to bring her sister instead,
    and discussed with Appellant the sexual details of their planned
    encounter.    Plans were set for a meeting two days later at the
    Colorado Inn at Fort Carson.   In a final communication, Mrs. N
    3
    United States v. Brooks, No. 04-0348/AR
    suggested Appellant bring a teddy bear with him to “help break
    the ice” with her sister.
    CID agents apprehended Appellant at the Colorado Inn on
    March 31.    The agents seized and inventoried a shopping bag
    Appellant was carrying; it contained a stuffed animal tiger, a
    musical water globe, a light source with artificial flowers, and
    a knife.    In a sworn statement taken after his arrest, Appellant
    admitted asking Mrs. N if he could have sex with her eight-year-
    old sister, but stated:
    I had no intentions [sic] to go through with any of
    the acts because I am not the type of person to do
    those types of things and I said what I said because
    it was erotic and exciting to me. It was pure talk
    with no interest of ever really committing the acts.
    I went to the Colorado Inn . . . to see if the night
    was a prank or if it was real. If it had been real I
    would have left without actually entering the room. I
    would never have sex with a girl under the age of
    18[.]
    DISCUSSION
    Summary of the Arguments
    Appellant states he “may have attempted to persuade Mrs. N
    to bring an eight-year-old girl to a hotel room where he could
    have engaged in criminal sexual intercourse,” but refers to the
    plain language of 
    18 U.S.C. § 2422
    (b) (2000),2 and argues that
    2
    
    18 U.S.C. § 2422
    (b) provides:
    Whoever, using the mail or any facility or means of
    interstate or foreign commerce, or within the special
    maritime and territorial jurisdiction of the United
    4
    United States v. Brooks, No. 04-0348/AR
    the evidence is insufficient to support his conviction because
    he never directly communicated with a minor.   The person with
    whom he communicated, rather, was an adult, Mrs. N.   Citing the
    interpretative preference for plain readings of unambiguous
    statutes, Appellant argues that § 2422(b) does not impose
    criminal liability for such “indirect” inducement.
    The Government argues Appellant “attempted to persuade,
    induce[,] and entice an actual minor to engage in actual
    criminal sexual conduct,” and urges this Court to find no
    difference between direct inducement and inducement through an
    intermediary.   The Government cites United States v. Root, 
    296 F.3d 1222
     (11th Cir. 2002), cert. denied, 
    537 U.S. 1176
     (2003),
    United States v. Murrell, 
    368 F.3d 1283
     (11th Cir. 2004), and
    United States v. Filipkowski, ACM 34056, 2002 CCA 
    70 LEXIS, 2002
    WL 496453 (A.F. Ct. Crim. App. Mar. 29, 2002), among others, as
    cases where actual minors were not required to sustain a
    conviction under § 2422(b).   Both Root and Filipkowski involved
    States knowingly persuades, induces, entices, or
    coerces 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 fined
    under this title and imprisoned not less than 5 years
    and not more than 30 years.
    (emphasis added). 
    18 U.S.C. § 2422
    (b) was amended in 2003.
    When Appellant was convicted, the punishment under this
    provision was limited to imprisonment for “not more than 15
    years.”
    5
    United States v. Brooks, No. 04-0348/AR
    defendants engaged in sexually explicit online conversations
    with undercover police officers pretending to be young children.
    Standard of Review
    The test for legal sufficiency requires appellate courts to
    review the evidence in the light most favorable to the
    Government.   If any rational trier of fact could have found the
    essential elements of the crime beyond a reasonable doubt, the
    evidence is legally sufficient.   United States v. Byers, 
    40 M.J. 321
    , 323 (C.M.A. 1994) (citing Jackson v. Virginia, 
    443 U.S. 307
    , 318-19 (1979)); United States v. Turner, 
    25 M.J. 324
    , 324
    (C.M.A. 1987).
    Fictitious Minors and Attempt
    Whether a conviction under § 2422(b) requires an accused to
    communicate directly with a minor is an issue of first
    impression in this Court.   To resolve this issue, we rely on the
    text of the statute and cases from other jurisdictions that have
    addressed this issue.
    The cases pertinent to our discussion involve three
    distinct issues: (1) whether the statute requires direct
    inducement of a minor; (2) whether the relevant criminal intent
    is the intent to induce, or the intent to commit the actual
    sexual act; and (3) whether the statute requires communication
    with an actual minor.
    6
    United States v. Brooks, No. 04-0348/AR
    Regarding the requirement for direct inducement, the
    Eleventh Circuit, in United States v. Murrell, 
    368 F.3d 1283
    (11th Cir. 2004), recently affirmed a § 2422(b) conviction on
    facts nearly identical to those before us.    There, appellant
    Murrell was engaged in online conversations of a sexual nature
    with undercover Detective Neil Spector.    Murrell expressed
    interest in “renting” Spector’s fictitious thirteen-year-old
    daughter for a “discreet sexual relationship.”     366 F.3d at
    1284-85.    Murrell arranged to meet Spector at a hotel where he
    agreed to pay $300 for sex with the young girl.    Id. at 1285.
    Police arrested Murrell when he arrived at the hotel carrying
    $300, a box of condoms, and a teddy bear.    Id.   The Eleventh
    Circuit rejected Murrell’s argument that he did not violate §
    2422(b) because he did not directly communicate with a minor or
    a person he believed to be a minor.    Id. at 1284-85.   On the
    contrary, the court found that Murrell’s acts constituted
    “inducement” under the statute where, “[b]y negotiating with the
    purported father of a minor, Murrell attempted to stimulate or
    cause the minor to engage in sexual activity with him.”    Id. at
    1287.
    Regarding the issue of intent and the substantial step
    necessary for an attempt conviction, the court held Murrell’s
    actions, “taken as a whole, demonstrate unequivocally that he
    intended to influence a young girl into engaging in unlawful
    7
    United States v. Brooks, No. 04-0348/AR
    sexual activity[.]”    Id. at 1288.   He made “explicit
    incriminating statements to Detective Spector,” “traveled two
    hours . . . to meet a minor girl for sex,” and “carried a teddy
    bear, $300 in cash, and a box of condoms when he arrived at the
    meeting site.”   Id.
    Other jurisdictions have held that a conviction under §
    2422(b) does not require a defendant to attempt an actual sexual
    act.   In United States v. Bailey, 
    228 F.3d 637
     (6th Cir. 2000),
    cert. denied, 
    532 U.S. 1009
     (2001), for example, the Sixth
    Circuit concluded that a § 2422(b) conviction requires only “an
    intent to persuade or to attempt to persuade[,]” noting:
    Congress has made a clear choice to criminalize
    persuasion and the attempt to persuade, not the
    performance of the sexual acts themselves.
    637 F.3d at 639.
    Finally, there is abundant support for the proposition that
    a conviction under § 2422(b) does not require an actual minor.
    See, e.g., Root, 
    296 F.3d at 1227
     (upholding an attempt
    conviction under § 2422(b) where the “minor” was an agent with
    the FBI’s Innocent Images Task Force); United States v. Meek,
    
    366 F.3d 705
    , 717 (9th Cir. 2004) (concluding “an actual minor
    victim is not required for an attempt conviction under [§
    2422(b)]”); United States v. Farner, 
    251 F.3d 510
    , 513 (5th Cir.
    2002) (rejecting an “impossibility” defense to a § 2422(b)
    conviction where defendant “acted with the kind of culpability
    8
    United States v. Brooks, No. 04-0348/AR
    otherwise required for . . . the underlying substantive offense”
    and “engaged in conduct which constitutes a substantial step
    toward the commission of the crime”);3 Filipkowski, 
    2002 CCA LEXIS 70
    , 
    2002 WL 496453
     (upholding a § 2422(b) conviction where
    the “minor” was a fiction created by a state Child Exploitation
    Task Force).4
    Consistent with Murrell and the cited cases concerning
    criminal attempt, Appellant’s conviction in this case is well
    supported by the facts.   Appellant’s intended eight-year-old
    victim began as a fiction and ultimately came to represent Mrs.
    N’s young sister.   As in Murrell, Appellant never directly
    communicated with an actual minor or with a person he believed
    was a minor.
    Because he directed his efforts at Mrs. N instead of her
    sister, however, the members could have found Appellant “acted
    with the kind of culpability otherwise required . . . for the
    underlying substantive offense.”       Farner, 251 F.3d at 513; see
    also Byrd, 
    24 M.J. 286
    .   He intended to have criminal sexual
    3
    The military courts employ a similar test in criminal attempt
    cases. See United States v. Byrd, 
    24 M.J. 286
     (C.M.A. 1987).
    4
    Analogous attempt convictions result in drug sting cases where
    an accused negotiates but does not consummate an illegal drug
    transaction. See, e.g., United States v. Carothers, 
    121 F.3d 659
    , 661-62 (11th Cir. 1997); United States v. Baptista-
    Rodriguez, 
    17 F.3d 1354
    , 1369-70 (11th Cir. 1994); United States
    v. McDowell, 
    705 F.2d 426
    , 428 (11th Cir. 1983); see also United
    States v. Forbrich, 
    758 F.2d 555
    , 557 (11th Cir. 1985)
    (affirming conviction for unconsummated espionage activities).
    9
    United States v. Brooks, No. 04-0348/AR
    contact with a minor and told Mrs. N as much.      Because we
    conclude that Appellant acted “with the intent to induce a minor
    to engage in unlawful sexual activity, the first element of
    attempt is satisfied” here.   Murrell, 
    368 F.3d at 1287-88
    .
    Appellant then completed the attempt with actions that
    “mark his conduct as criminal such that his acts as a whole
    strongly corroborate the required culpability.”      
    Id. at 1288
    .
    See also Farner, 251 F.3d at 513.       A reasonable finder of fact
    could determine that Appellant’s travel to the Colorado Inn, and
    his arrival there with gifts for a child, constituted the overt
    act that was the “substantial step toward persuading, inducing,
    enticing, or coercing a minor to engage in illegal sexual
    activity.”   Bailey, 
    228 F.3d at 640
    ; Murrell, 
    368 F.3d at 1288
    .
    A reasonable fact-finder could find unpersuasive Appellant’s
    claim that he went to the Colorado Inn to determine whether his
    conversations with Mrs. N were part of an Internet prank by his
    friends.   The Filipkowski court found a similar argument
    “significantly undercut by the fact that the appellant actually
    traveled . . . in an attempt to meet the other person.”
    Filipkowski, 
    2002 CCA LEXIS 70
     at *21, 
    2002 WL 496453
     at *7.        As
    Root recognized, “the fact that [an appellant’s] crime had not
    ripened into a completed offense is no obstacle to an attempt
    conviction.”   
    296 F.3d at 1227
    .
    10
    United States v. Brooks, No. 04-0348/AR
    CONCLUSION
    The evidence presented at trial strongly supported a
    conviction.   Appellant knowingly induced Mrs. N to bring her
    sister to the Colorado Inn for sex.   He was told, and appeared
    to believe, that the girl was eight years old.   Before meeting
    the girl at the Colorado Inn, Appellant bought gifts suitable
    for a young child.   Finally, Appellant was apprehended at the
    door of the hotel room in which he had arranged to meet Mrs. N.
    Viewed in the light most favorable to the Government, this
    evidence would allow any rational trier of fact to find the
    essential elements of the crime beyond a reasonable doubt.
    Byers, 40 M.J. at 323.
    Thus, we affirm the decision of the United States Army
    Court of Criminal Appeals.
    11