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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-12620
Non-Argument Calendar
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D.C. Docket No. 4:17-cr-00014-MW-CAS-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAYTON MICHAEL CRAMER,
Defendant - Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
________________________
(October 3, 2019)
Before WILSON, WILLIAM PRYOR, and GRANT, Circuit Judges.
PER CURIAM:
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Dayton Michael Cramer appeals his conviction for attempted enticement of
a minor to engage in sexual activity, in violation of
18 U.S.C. § 2422(b). Cramer
argues the district court erred in denying his motions for judgment of acquittal
because his conviction was based on insufficient evidence. He also claims his
conduct did not violate § 2422(b) as interpreted by the United States Court of
Appeals for the District of Columbia Circuit. After careful review of the parties’
briefs and the record, we affirm.
I.
We review de novo a denial of a motion for judgment of acquittal on
sufficiency of the evidence grounds, viewing the evidence in the light most
favorable to the government and resolving all reasonable inferences and credibility
evaluations in the government’s favor. United States v. Capers,
708 F.3d 1286,
1296 (11th Cir. 2013). We need not rule out every hypothesis of innocence
because the “jury is free to choose among reasonable constructions of the
evidence.” United States v. Peters,
403 F.3d 1263, 1268 (11th Cir. 2005). The
jury’s verdict must be affirmed unless no reasonable trier of fact could have
reached a conclusion of guilt beyond a reasonable doubt. See United States v.
Foster,
878 F.3d 1297, 1304 (11th Cir. 2018).
A conviction under § 2422(b) for attempting to induce a minor to engage in
sexual activities requires the government to prove the defendant “(1) had the
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specific intent to induce a minor to engage in sexual activity, and (2) took a
substantial step toward the commission of that offense.” United States v.
Stahlman, No. 17-14387, slip op. at 47 (11th Cir. Aug. 19, 2019). “The statute
criminalizes an intentional attempt to achieve a mental state––a minor’s assent.”
United States v. Van Buren Lee,
603 F.3d 904, 914 (11th Cir. 2010) (emphasis in
original) (internal quotation mark omitted). A defendant can be convicted under §
2422(b) even if he attempted to exploit a fictitious minor and communicated only
with an adult intermediary. United States v. Gillis, No. 16-16482, slip op. at 9–10
(11th Cir. Sept. 13, 2019) (per curiam).
Cramer argues the evidence failed to establish either element because he
never had contact with the fictional minor, Paisley; he traveled to meet only
Paisley’s purported stepmother; and he did not bring any items or gifts indicating
he intended to meet or have sex with Paisley. Cramer also claims he unequivocally
abandoned his plans to meet Paisley.
Based on the evidence presented at trial, a reasonable jury could have found
that Cramer had the requisite intent. With regard to intent, “the government must
prove that the defendant intended to cause assent on the part of the minor, not that
he acted with the specific intent to engage in sexual activity.” See Van Buren Lee,
603 F.3d at 914 (emphasis added) (internal quotation mark omitted). Cramer
initiated an online conversation with a person he believed to be the stepmother of a
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minor after reading a post on Craigslist warning that a stepmother was seeking an
older man to give her 13-year-old stepdaughter some “experience.” The ensuing
conversation demonstrates that Cramer intended to cause Paisley’s assent: Cramer
asked what the stepmother wanted him to teach Paisley, whether Paisley was a
virgin, and whether Paisley wanted to learn. He said he needed to know that
Paisley wanted to do the things that the stepmother wanted her to learn. He said he
would not hurt Paisley and did not want to surprise her. And he said he did not
have a problem with the fact that Paisley was 13, claiming he had previously
engaged in sexual activity with teens.
Cramer also sent a picture of himself for the stepmother to show Paisley and
then followed up with an explicit picture of his genitalia. He gave a detailed and
explicit account of what he intended to do with Paisley, claiming he would go
slow, give her a massage to help her relax, gradually move to sexual activity, and
stop at any point if she wanted to stop. Finally, Cramer discussed potential
meeting times with the stepmother.
Although Cramer ultimately backed out of meeting Paisley, sufficient
evidence demonstrated his decision stemmed from his fear that the stepmother was
associated with law enforcement, not from a change of heart about pursuing
Paisley’s assent to sexual activity. Indeed, Cramer repeatedly asked for assurances
that the stepmother was not associated with law enforcement, claiming that was his
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“only reluctance in the matter.” He ultimately agreed to meet the stepmother so
she could prove she was not associated with law enforcement. Cramer’s decision
to meet the stepmother corroborates his criminal intent because he would not have
had reason to fear her association with law enforcement unless he intended to
pursue Paisley’s assent to sexual activity. See Van Buren Lee,
603 F.3d at 915
(noting defendant’s concern over whether a purported mother of two minor
daughters was part of a sting operation helped demonstrate his criminal intent
under § 2422(b)). Therefore, the record contains ample evidence that Cramer
intended to induce Paisley’s assent to sexual activity with him.
A reasonable jury also could have found that Cramer took a substantial step
toward causing Paisley’s assent to engage in sexual activity with him. A
substantial step is an objective act that marks the defendant’s conduct as criminal
such that his actions as a whole strongly corroborate the required culpability.
United States v. Murrell,
368 F.3d 1283, 1288 (11th Cir. 2004). In the context of
§ 2422(b), “the government must prove that the defendant took a substantial step
toward causing assent, not toward causing actual sexual contact.” Van Buren Lee,
603 F.3d at 914. We must evaluate the totality of Cramer’s conduct to determine
whether the record supports that he took a substantial step toward inducing a minor
to engage in sexual conduct.
Id. at 916; United States v. Yost,
479 F.3d 815, 820
(11th Cir. 2007) (per curiam).
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The totality of Cramer’s conduct demonstrates he took a substantial step
toward inducing Paisley’s assent to sexual activity, including his communications
with the stepmother, the photographs he sent, his detailed description of the sexual
acts he planned to do with Paisley, his efforts to arrange a meeting, and his
repeated concerns about law enforcement. Further, despite backing out of meeting
Paisley, Cramer traveled to an arranged meeting spot to meet the stepmother and
ensure she was not part of a sting operation.
This court recently held that a defendant’s travel to meet an intermediary to
ensure he was not affiliated with law enforcement constituted a substantial step
toward inducing a minor to engage in sexual activity. See Gillis, slip op. at 5, 10.
In Gillis, the defendant backed out of a planned meeting with a purported father
and his fictional daughter in part because he was concerned it was a sting
operation. See id. at 5. The father assured the defendant it was not, and they
planned another meeting so they could show each other they were “real” before
going back to the father’s house to meet the daughter. Id. We found the defendant
took a substantial step toward inducing a minor’s assent to sexual activity when he
drove to meet the father. Id. at 10.
Although Cramer and the stepmother did not prearrange a meeting with
Paisley the same day as their meeting, that is a distinction without difference
because “our precedent and the precedents of many of our sister circuits hold that
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[§] 2422(b) prohibits attempts to cause minors to agree to engage in illegal sexual
conduct, not attempts to engage in illegal sexual conduct with minors.” Van Buren
Lee,
603 F.3d at 916. Regardless of whether Cramer anticipated seeing Paisley or
engaging in sexual conduct with her the day of the arranged meeting, a reasonable
jury could have concluded that he crossed the line from mere “talk” to attempted
inducement when he drove to meet the stepmother. See Gillis, slip op. at 10; Yost,
479 F.3d at 820. Indeed, it is difficult to imagine why Cramer would have
arranged a meeting with the stepmother to ensure she was not affiliated with law
enforcement unless he intended to continue pursuing Paisley’s assent to sexual
activity. Therefore, sufficient evidence supports Cramer’s conviction.
II.
Cramer also asks us to endorse the United States Court of Appeals for the
District of Columbia Circuit’s interpretation of § 2422(b) that communications
with an adult intermediary to persuade, induce, entice, or coerce a minor are
punishable only if “the defendant’s interaction with the intermediary is aimed at
transforming or overcoming the minor’s will in favor of engaging in illegal sexual
activity.” See United States v. Hite,
769 F.3d 1154, 1160 (D.C. Cir. 2014). But
this court has already rejected that interpretation of § 2422(b). See Murrell,
368
F.3d at 1287.
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In Murrell, we considered the meaning of the term “induce” for purposes of
§ 2422 when deciding whether a defendant could be convicted for inducing a
minor to engage in illegal sex acts by communicating only through an adult
intermediary. See
368 F.3d at 1287. Our court acknowledged “induce” could
mean “‘to lead or move by influence or persuasion; to prevail upon,’ or
alternatively, ‘to stimulate the occurrence of; cause.’”
Id. (alterations accepted)
(quoting The Am. Heritage Dictionary of the English Language 671 (William
Morris ed., 1st ed. 1981)). We endorsed the latter definition because the former
would essentially render the term “persuade” superfluous. See
id. Therefore, our
binding precedent1 forecloses a reading of the statute that would make interactions
with an adult intermediary punishable only if such interactions were aimed at
transforming or overcoming the minor’s will in favor of sexual activity.
Accordingly, we affirm Cramer’s conviction.
1
Under this court’s prior panel precedent rule, a prior panel’s holding is binding on all
subsequent panels unless and until it is overruled by the Supreme Court or by this court sitting en
banc. United States v. Michael Lee,
886 F.3d 1161, 1163 (11th Cir. 2018), petition for cert. filed,
(U.S. July 23, 2019) (No. 19-5331).
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