USCA11 Case: 22-12097 Document: 43-1 Date Filed: 09/05/2023 Page: 1 of 4
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12097
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ZACHARY S. SPIEGEL,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 2:22-cr-14005-AMC-1
____________________
USCA11 Case: 22-12097 Document: 43-1 Date Filed: 09/05/2023 Page: 2 of 4
2 Opinion of the Court 22-12097
Before WILSON, JORDAN, and LUCK, Circuit Judges.
PER CURIAM:
Zachary Spiegel, proceeding with counsel, appeals his con-
viction for attempted enticement of a minor to engage in sexual
activity in violation of
18 U.S.C. § 2422(b). On appeal, he argues
that the district court erred by denying his motion for a judgment
of acquittal because there was insufficient evidence to show that he
intended to entice a minor to engage in sexual activity and that he
took a substantial step toward committing that offense. He con-
tends that he lacked the requisite intent under § 2422(b) because he
broached the topic of sex with the fictitious minor before learning
she was a minor and initially indicated that he could not engage in
sexual activity with her after learning her age. He also argues that
he did not take a substantial step under § 2422(b) because he only
had explicit sex talk with the minor and never traveled to meet her.
We review whether sufficient evidence supported a jury’s
guilty verdict de novo, resolving all reasonable inferences in favor of
the verdict. See United States v. Lee,
603 F.3d 904, 912 (11th Cir.
2010). We will not disturb the verdict unless no trier of fact could
have found guilt beyond a reasonable doubt. See
id.
The statute at issue here, § 2422(b), makes it unlawful to
knowingly attempt to entice a minor to engage in unlawful sexual
activity. To secure a conviction under § 2422(b), the government
must prove beyond a reasonable doubt that the defendant (1) had
the specific intent to entice a minor to engage in unlawful sexual
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22-12097 Opinion of the Court 3
activity, and (2) took a substantial step toward the commission of
that offense. See Lee,
603 F.3d at 913-14.
The government must prove that the defendant intended to
cause assent on the part of the minor, not that he acted with specific
intent to engage in the sexual activity, and that he took a substantial
step toward causing assent, not toward causing actual sexual con-
tact. See
id. at 914. To determine whether a defendant took a sub-
stantial step under § 2422(b), we consider the totality of the defend-
ant’s actions. See id. at 914, 916. We have held that a defendant’s
sexually solicitous communication can constitute a substantial step
under § 2422(b) because the principal, if not exclusive, means of
committing the offense require oral or written communications.
See United States v. Rothenberg,
610 F.3d 621, 626-27 (11th Cir. 2010).
A defendant takes a substantial step when his communication
crosses the line from sexual banter to criminal enticement. See
id.
at 627. Evidence that the defendant traveled to meet the minor is
not necessary to sustain an attempt conviction under § 2422(b). See
United States v. Yost,
479 F.3d 815, 819-20 (11th Cir. 2007).
The district court did not err by denying the motion for a
judgment of acquittal. The evidence was sufficient to convict un-
der § 2422(b) because the jury could have reasonably found that
Mr. Spiegel—despite not meeting with the minor—intended to
cause the minor to assent to sexual activity and that he took a sub-
stantial step toward causing the minor’s assent through his com-
munications. See § 2422(b); Lee,
603 F.3d at 912-14. For example,
after learning the minor’s age, he continued to send the minor
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4 Opinion of the Court 22-12097
messages describing the sex acts he wanted to perform with her,
sent the minor a picture of his penis, exchanged phone numbers
with the minor, and made arrangements to meet her at a movie
theatre. See Lee,
603 F.3d at 912-14; Rothenberg,
610 F.3d at 626-27.
Indeed, the evidence here is very similar to that which we found
sufficient in Yost,
479 F.3d at 819-20.
AFFIRMED.
