United States v. Brooks , 2005 CAAF LEXIS 357 ( 2005 )

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.
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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
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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
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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, 2002WL 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.”
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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.
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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
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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
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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).
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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.
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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.
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